Payment of Additional Amounts. (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 without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances: (1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later; (2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman IslandsUnited States, Mexico, Spain, the Netherlands, the United Kingdom, France, Switzerland or any other jurisdiction or, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection ownership or holding of principal amount, redemption price, repurchase price and interest (if anya Note), 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge, impost and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or charge;withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other 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, such directives,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, and
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The limitation on the Issuer’s obligations to pay Additional Amounts stated in clause (iii) of Section 3.21(b) will not apply (i) if the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the 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) if Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such clause is expressly required by the applicable Mexican laws and regulations in order to apply Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on their own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations. In addition, clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(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 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 Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (ai) The All sums payable by the Company shall pay any amounts due with respect to the Securities Holders of the Notes (whether pursuant to this Section 2, Section 3, Section 4(b), Section 5 or otherwise) shall be paid free of any restriction or condition; free and the Guarantors will pay clear of and without any amounts due with respect to the Securities Guarantees deduction or withholding on account of any tax, levy or any other charges whatsoever; and without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the on account of any other amount, whether by way of set-off, counterclaim or otherwise.
(ii) If the Cayman Islands, Switzerland Company or any other jurisdiction in which either person on behalf of the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such to make any payment, deduction or withholding is at on account of any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost charges or charge;other amount from any sum paid or payable by the Company to, or any sum received or receivable by, the Holders of the Notes, the Company shall pay such additional amounts as is necessary to ensure that, after the making of that deduction, withholding or payment, the Holders of the Notes receives on the due date and retains a net sum after any such deduction, withholding or payment equal to the respective amounts that the Holders of the Notes would have received and so retained had no such deduction, withholding or payment been required or made.
(iii) If the Company or any other person on behalf of the Company is required to pay any tax or other amount on, or calculated by reference to, any sum received or receivable by the Holders of the Notes, the Company shall pay or procure the payment of that tax or other amount before any interest or penalty becomes payable or, if that tax or other amount is payable and paid by the Holders of the Notes, shall reimburse the Holders of the Notes on demand for the amount paid by it.
(iv) Within fourteen (14) days after paying any sum from which it is required by law to make any deduction or withholding, and within fourteen (14) days after the due date of payment of any tax, levy, charges or the amount which it is required to pay, the Company shall deliver to the Holders of the Notes evidence reasonably satisfactory to the Holders of the Notes of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority.
(v) If additional amounts become payable under Sections 2(d)(ii) or 2(d)(iii), the Company and the Holder of the Note shall use reasonable efforts to amend the Note if such amendment would (i) not subject such Holder to any unreimbursed cost or expense, (ii) in the reasonable judgment of the Company, would eliminate or reduce amounts payable pursuant to Sections 2(d)(ii) or 2(d)(iii), as the case may be, in the future and (iii) in the reasonable judgment of the Holder, would not otherwise be disadvantageous to such Holder. The Company agrees to pay all costs and expenses incurred by any Holder of the Note in connection with any such amendment.
Appears in 1 contract
Samples: Note Purchase Agreement (Flextronics International LTD)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer under or with respect to the Securities Notes shall be made free and the Guarantors will pay clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) Taxes imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland or any other Taxing Authority in any jurisdiction in which either the Company Issuer is organized or a Guarantor is a otherwise resident for tax purposes or any political subdivision jurisdiction from or taxing authority of such jurisdiction through which payment is made (the each a “Relevant Taxing Jurisdiction”), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction, from any payment made under or with respect to the Notes, the Issuer shall make such withholding or deduction is required by law. If and shall pay such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction or withholding will shall equal the principal amountamount the Holder would have received if such Taxes had not been withheld or deducted; provided, redemption price and interest (if any)however, on the Securities. However, neither the Company nor any Guarantor will pay any that no Additional Amounts in the following instancesshall be payable with respect to any Tax that would not have been imposed, payable or due:
(1) if with respect to a Holder with which the Issuer or any withholding would Guarantor does not be payable or due deal on an arm’s length basis within the meaning of the Income Tax Act (Canada) on the date of such payment;
(2) but for the fact that existence of any present or former connection between the Holder and the Relevant Taxing Jurisdiction (i) the holder of including being a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national citizen or resident or national of, or engaging in carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction Jurisdiction) other than the mere holding or ownership of the Security Notes or enforcement of rights thereunder or the collection receipt of principal amountpayments in respect thereof;
(3) but for the failure to satisfy any certification, redemption priceidentification or other reporting requirements whether imposed by statute, repurchase price and interest treaty, regulation or administrative practice; or
(4) if any), in accordance with the terms presentation of the Securities and this Indenture, or the enforcement of the Security or Notes (ii) where presentation is required, the Security was presented more than ) for payment has not occurred within 30 days after the date such payment became was due and payable or was duly provided for, whichever is later;
. In addition, Additional Amounts shall not be payable if the beneficial owner of,.or person ultimately entitled to obtain an interest in, such Notes had been the Holder of the Notes and such beneficial owner would not be entitled to the payment of Additional Amounts by reason of clause (1), (2), (3) or (4) above. In addition, Additional Amounts shall not be payable with respect to any Tax which is payable or assessed on a Holder under the laws of the jurisdiction(s) in which: (1) that Holder is incorporated, organized, resident or has a permanent establishment for tax purposes, or (2) that Holder’s office is located in respect of amounts received or receivable in that jurisdiction, if any withholding tax that Tax is attributable imposed on or calculated by reference to any estatethe income received or receivable by that Holder. Upon request, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;the Issuer shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Payment of Additional Amounts. (a) The All payments of principal of, and interest and premium, if any, on, the Notes by 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 be made without deduction or withholding for or on account of (i) any and all present and or future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland State of Israel or any other jurisdiction in which either the Company by or a Guarantor is a resident for tax purposes or within any political subdivision thereof or taxing any authority therein having power to tax, (ii) changes to the Ruling or (iii) the involuntary delisting of the Notes from the TACT Institutional (such jurisdiction (the taxes, collectively “Taxing JurisdictionIsraeli Taxes”), unless deduction or withholding of such withholding or deduction Israeli Taxes is required by law. If In the event the Company is required to deduct or withhold such deduction or withholding is at any time requiredtax, the Company or will pay such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) as specified in the applicable Pricing Supplement, except that no such Additional Amounts shall be payable in respect of principal amountany Note:
(a) to or on behalf of a Holder who is subject to such Israeli Taxes, redemption price and interest (if any), in accordance by reason of his being or having been connected with the terms State of the Securities and this IndentureIsrael, as may otherwise than merely by holding such Note or receiving principal or interest in respect thereof, or
(b) to or on behalf of a Holder who would not be necessary so that the net amounts paid liable for or subject to the holder or the Trustee after such deduction or withholding will equal by making a declaration of non-residence or other similar claim for exemption to the principal amountrelevant tax authority if, redemption price and interest after having been requested to make such a declaration or claim (if anyit is legally entitled to do so), on such Holder fails to do so; or
(c) with respect to any tax, assessment, or other governmental charge that is imposed or withheld by reason of the Securitiesapplication of Section 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any successor provisions), any regulation, pronouncement, or agreement thereunder, official interpretations thereof, or any law implementing an intergovernmental approach thereto, whether currently in effect or as published and amended from time to time. However, neither the Company nor any Guarantor will The obligation to pay any Additional Amounts in the following instances:
respect of Israeli Taxes shall not apply to (1a) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or any similar tax, levyassessment or other governmental charge or (b) any tax, impost assessment or charge;other governmental charge which is payable otherwise than by deduction or withholding from payments of principal or interest on the Notes; provided, that, except as otherwise set forth in the Notes, the Company shall pay all stamp and other duties, if any, which may be imposed by the State of Israel, the United States or any respective political subdivision thereof or any taxing authority of or in the foregoing, with respect to the Fiscal Agency Agreement or the Charge Documents or as a consequence of the issuance of the Notes. Any reference herein to principal and/or interest in respect of Notes of a Series shall also be deemed to refer to any Additional Amounts which may be payable hereunder.
Appears in 1 contract
Samples: Fiscal Agency Agreement
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Issuer, Tyco International and any amounts due other Guarantor under or with respect to the Securities and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Authority ("Taxes"), unless the Issuer, Tyco International or such 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 Issuer, Tyco International or such 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 Guarantees without deduction or withholding for any and all present and future withholding taxesthe Guarantees, levies, imposts and charges (a “withholding tax”) imposed by or for as 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”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company Issuer, Tyco International or such Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Securities to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Securities or the collection exercise or enforcement of principal amountrights under such Securities, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and Guarantees or 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 payment became due or was provided for, whichever is later);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Tax imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed 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 is later, except to the extent that the beneficiary or Holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period; or (d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Issuer, Tyco International or such Guarantor shall apply this clause (d), the Issuer, Tyco International or such Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The Issuer, Tyco International or such Guarantor, as applicable, 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 Authority in accordance with all applicable laws. The Issuer, Tyco International or such Guarantor, as applicable, will use their reasonable 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 Issuer, Tyco International or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Securities, within 60 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 Issuer, Tyco International or such Guarantor or if, notwithstanding the Issuer's, Tyco International's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Issuer, Tyco International or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuer, Tyco International or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer, Tyco International or such 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 Securities on the payment date. The foregoing provisions 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 Issuer, Tyco International or such 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. In addition, the Issuer 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. Whenever in this Indenture or the Securities there is mentioned, in any context, the payment of principal, 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. ARTICLE THIRTEEN
Appears in 1 contract
Payment of Additional Amounts. (a) The Company All payments of principal, premium, if any, and interest on Securities of any series shall pay any amounts due with respect to the Securities be made without set-off, counterclaim, fees, liabilities or similar deductions, and the Guarantors will pay any amounts due with respect to the Securities Guarantees free and clear of, and without deduction or withholding for any and all present and future withholding for, taxes, levies, imposts and imposts, duties, charges (a “withholding tax”) imposed or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Commonwealth of Puerto Rico or any political subdivision or taxing authority of such jurisdiction thereof or therein ("Taxes"). If the “Taxing Jurisdiction”), unless such withholding Company or deduction any agent thereof is required by law. If law or regu- lation to make any deduction or withholding for or on account of Taxes, the Company shall pay such additional amounts ("Additional Amounts") as shall be necessary in order that the net amounts received by the Holders of the Securities of any series or the holders or beneficial owners of any interest therein or rights in respect thereof after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or withholding, except that no such Additional Amounts shall be payable:
(a) to any Holder of a Security or any interest therein or rights in respect thereof where such deduction or withholding is at required by reason of such Holder having some connection with the Commonwealth of Puerto Rico or any time required, political subdivision or taxing authority thereof or thereon other than the Company or mere holding of and payment in respect of such Guarantor, as applicable, will, to the fullest extent allowed by law security;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”b) 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 amounts paid to the holder or the Trustee after such any deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding that would not be payable or due have been required but for the fact that (i) presentation by the holder Holder of a Security (or for payment on a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 date more than 30 days after the Date of Maturity or the date such on which payment became due or was thereof is duly provided for, whichever is occurs later;; or
(2c) in respect of any deduction or withholding that would not have been required but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Commonwealth of Puerto 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 compliance is required by the Commonwealth of Puerto Rico, or any withholding tax is attributable political subdivision or taxing authority thereof or therein, as a precondition to exemption from such deduction or withholding. Any reference in the Indenture to principal or interest shall be deemed also to refer to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;Additional Amounts that may be payable under this Section 1008.
Appears in 1 contract
Samples: Subordinated Indenture (Popular International Bank Inc)
Payment of Additional Amounts. (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 without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder holder
of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, levy, impost or charge which is payable otherwise than by withholding from payment of principal amount, redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) 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;
(7) if any withholding tax or deduction is required to be made in respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code, 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
(8) any combination of the instances described in the preceding clauses.
(b) With respect to clause (a)(5) above, in the absence of evidence satisfactory to the Company or the applicable Guarantor, it may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. The Company or the applicable Guarantor also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than the sole beneficial owner of the Security to the extent that a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Security.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Payment of Additional Amounts. (a) The Company All interest amounts payable in respect of the Notes shall pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees be made without deduction or withholding for or on account of any and all present and or future withholding taxes, levies, imposts and duties or governmental charges (a “of any nature whatsoever imposed or levied by way of deduction or withholding tax”) imposed by or for the account on behalf 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 Tax Jurisdiction (the “Taxing JurisdictionWithholding Taxes”), unless such deduction or withholding or deduction is required by law. If In the event of such withholding or deduction or withholding is at on payments of interest (but not in respect of the payment of any time requiredprincipal in respect of the Notes), the Company or such Guarantor, as applicable, willIssuer shall, to the fullest extent allowed permitted by law (subject to compliance by the holder of a Security with any relevant administrative requirements)law, 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 will be necessary so in order that the net amounts paid received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
(a) are payable by any person acting as custodian bank or collecting agent on the Holder’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or
(b) would not be payable to the holder or the Trustee after extent such deduction or withholding will equal could be avoided or reduced if the principal amount, redemption price and interest Holder or beneficial owner of the Note (if any), or any financial institution through which the Holder or beneficial owner holds the Notes or through which payment on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1Note is made) if any withholding would not be payable or due but for the fact that (i) makes a declaration of non-residence or other similar claim for exemption to the holder of a Security (relevant tax authority or a fiduciarycomplies with any reasonable certification, settlordocumentation, beneficiary of, member information or shareholder of, other reporting requirement imposed by the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 relevant tax authority or (ii) where presentation is requiredenters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the Holder or beneficial owner (or such financial institution) or concerning ownership of the Holder or beneficial owner (or financial institution) or concerning such Holder’s or beneficial owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or
(c) are payable by reason of the Holder’s having, or having had, some personal or business connection with the Federal Republic of Germany and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Security was Federal Republic of Germany; or
(d) are presented for payment more than 30 days after the date Relevant Date except to the extent that the Holder would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or
(e) are withheld or deducted in relation to a Note that is presented for payment by or on the Holder’s behalf if it would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a member state of the European Union; or
(f) are deducted or withheld by the Paying Agent from a payment became due if the payment could have been made by another paying agent without such deduction or was withholding; or
(g) would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or
(h) are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment of interest becomes due, or is duly provided forfor and notice thereof is given in accordance with Section 11.04 of the Base Subordinated Indenture, whichever is occurs later;
. Moreover, all amounts payable in respect of the Notes shall be made subject to compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (2the “Code”), or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) if (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any withholding tax is attributable applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Amounts or otherwise indemnify a Holder in connection with any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;such compliance with the Code.
Appears in 1 contract
Samples: Fourth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Payment of Additional Amounts. (a) The Company All payments of principal, premium and interest in respect of each Security shall pay be made free and clear of, and without withholding or deduction for, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) imposed or penalties or interest related thereto of whatever nature imposed, levied, collected, withheld or assessed by or 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 within Mexico or any political subdivision or taxing authority of such jurisdiction thereof or therein (the “Taxing Jurisdiction”"Mexican Taxes"), unless such withholding or deduction is required by lawlaw or by regulation. If In the event that any such withholding or deduction in respect of principal, premium or withholding interest is at any time so required, the Company or Issuer shall pay such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “"Additional Amounts”") as will result in receipt by each holder of any Security of such amounts as would have been received by such holder with respect of principal amountto such Security had no such withholding or deduction been required, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so except that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any no Additional Amounts in the following instancesshall be payable for or on account of:
(1) if any withholding would not be payable tax, duty, assessment or due but for the fact that other governmental charge imposed by reason of
(iA) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such holder or the Taxing Jurisdiction beneficial owner of such Security and Mexico (or any political subdivision or taxing authority thereof or therein) other than the merely holding or ownership of the such Security or the collection receipt of, or enforcement of principal amountrights, redemption price, repurchase price and interest (if any), in accordance with under the terms of the Securities and this IndentureSecurities, or the enforcement receipt of payments in respect thereof, including, without limitation, such holder or the beneficial owner of such Security being or having been a national, domiciliary or resident thereof or being or having been present or engaged in a trade or business therein or having or having had a permanent establishment therein; or
(iiB) the presentation of such Security (where presentation is required, the Security was presented ) more than 30 days after the date on which the payment in respect of such payment Security became due and payable or was provided for, whichever is later, except to the extent that such holder would have been entitled to such Additional Amounts if it had presented such Security for payment on the last day of such period of 30 days;
(2) if any withholding tax is attributable to any estate, inheritance, gift, salessale, transfer, excise, personal property or similar tax, levy, impost assessment or other governmental charge;
(3) any tax, duty, assessment, fee or other governmental charge or increase thereof to the extent that such amount would not have been imposed or increased but for the failure of such holder or the beneficial owner of a Security to comply with any applicable certification, documentation, information or other reporting 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 of the holder or beneficial owner of such Security, provided, however, that the exclusion set forth in this clause (3) shall not apply in respect of any certification, identification, information, documentation or other reporting requirement if such requirement would be materially more onerous, in form, in procedure or in the substance of information disclosed, to the holder or beneficial owner of a Security 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
(4) any combination of items (1), (2) and (3). Whenever there is mentioned in any context, the payment of principal, premium or interest in respect of any Security or the net proceeds received on the sale or exchange of any Security, such mention shall be deemed to include 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 thereof pursuant to this Indenture. The Issuer will provide to the Trustee and Paying Agent documentation evidencing payment of withholding taxes within 30 days after payment thereof. Copies of such documentation shall be provided to holders requesting them. The Issuer will 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 or registration of the Securities, except for any such taxes, charges or similar levies imposed by any jurisdiction outside of Mexico (other than those resulting from, or required to be paid in connection with, the enforcement of the Securities following the occurrence of any Event of Default with respect to the Securities). Notwithstanding the foregoing, no service charge will be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith.
Appears in 1 contract
Samples: Indenture (Vitro Sa De Cv)
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Company, Tyco and any amounts due other Guarantor under or with respect to the Securities Notes and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, duties, levies, imposts and imposts, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 Taxing Authority (the “Taxing Jurisdiction”"Taxes"), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredthe Company, the Company Tyco or such Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company, Tyco or such 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 fullest extent allowed by law (subject to compliance by Notes or the holder of a Security with any relevant administrative requirements)Guarantees, as the case may be, the Company, Tyco or such Guarantor, as the case may be, 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 amounts paid to the holder or the Trustee amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Notes to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Notes or the collection exercise or enforcement of principal amountrights under such Notes, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, Guarantees or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is laterIndenture);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Taxes imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Notes or Guarantees (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 Additional Amounts had the Notes or Guarantees been presented for payment on any date during such 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company, Tyco or such Guarantor shall apply this clause (d), the Company, Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to provide such declaration or claim. The Company, Tyco or such Guarantor, 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 Authority in accordance with all applicable laws. The Company, Tyco or such Guarantor, as the case may be, will use its reasonable 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 Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Notes, within 60 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, Tyco or such Guarantor or if, notwithstanding the Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or Guarantees is due and payable, if the Company, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company, Tyco or such Guarantor will deliver to the Trustee an 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 Notes on the payment date. In addition, the Company, Tyco or such Guarantor, as the case may be, 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, Bermuda 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 Notes or the Guarantees. The foregoing provisions shall survive any termination of the discharge of the Indenture and shall apply muratis mutandis to any jurisdiction in which any successor Person to the Company, Tyco or such 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 such Person becomes a successor to the Company, Tyco or such Guarantor, as the case may be, shall be substituted for the date on which the series of Notes was issued. Whenever in the Indenture, the Notes 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 Notes or Guarantees, 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: Supplemental Indenture (Tyco International Group S A)
Payment of Additional Amounts. (a) i. The Company Partnership shall pay make all payments on the Series 16 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 for the Series 16 Preferred Units or (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 law. If such deduction or withholding is at any time required, the Company or such GuarantorPartnership shall, as applicable, will, subject to the fullest extent allowed by law (subject limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to compliance by the holder this Part XVII of a Security with any relevant administrative requirements)Schedule A, pay to the Series 16 Holders 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 distributions as may be necessary so that the every net amounts paid payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the holder amounts the Partnership would otherwise have been required to pay had no such withholding or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securitiesbeen required.
ii. However, neither the Company nor any Guarantor will The Partnership shall not be required to pay any Additional Amounts in the following instancesfor or on account of:
(1a) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or receipt of payment under, the enforcement of the Security Series 16 Preferred Units or any Series 16 Preferred Units presented for payment (ii) where presentation is required, the Security was presented required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment became first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or was provided forprior to such due date, whichever is laterit means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 16 Holders;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Samples: Limited Partnership Agreement (Brookfield Infrastructure Partners L.P.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer under or with respect to the Securities and the Guarantors will pay any amounts due a Note or by a Guarantor under or with respect to the Securities Guarantees a Note Guarantee shall be made free and clear of and without withholding or deduction for or withholding for on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (hereinafter, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland government of France or any other jurisdiction in which either the Company Issuer or a 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 such jurisdiction (the aforementioned being a “Taxing Jurisdiction”), unless the Issuer or such withholding or deduction Guarantor is required to withhold or deduct any such Taxes by law. law or by the interpretation or administration thereof.
(b) If the Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made under or with respect to a Note or a Note Guarantee of such deduction Guarantor, or withholding is at if a Holder actually pays any time requiredsuch Taxes where the Issuer or Guarantor 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 Company Issuer or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements)shall, 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 amounts paid to amount received by the holder or the Trustee Holder of such Note (including Additional Amounts) after such withholding or deduction of such Taxes (including any Taxes in such Additional Amounts) shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that notwithstanding the principal amountforegoing, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instanceswill not be paid:
(1) if any withholding to the extent the Taxes giving rise to such Additional Amounts would not be payable have been imposed, deducted or due withheld but for the fact that payment in a non-cooperative State or territory (iEtat ou territoire non coopératif) within the holder meaning of article 238.0 A of the French Code général des impôts;
(2) to the extent the Taxes giving rise to such Additional Amounts would not have been imposed, deducted or withheld but for the existence of any present or former connection between the Holder or beneficial owner of a Security Note (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of power over, the holderHolder or beneficial owner of such Note, if the holder Holder or beneficial owner is an estate, nominee, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, ) and the relevant Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the receipt of such payment or the acquisition, ownership, holding or ownership disposition of the Security or the collection of principal amountexecution, redemption pricedelivery, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, registration or the enforcement of the Security such Note or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is laterGuarantee);
(23) if any withholding tax is attributable subject to subsection (f) of this Section 4.20, with respect to any estate, inheritance, gift, sales, transfer, excise, transfer or personal property tax or similar tax, levy, impost assessment or governmental charge;
(4) subject to subsection (f) of this Section 4.20, with respect to any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note;
(5) 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 able to do so) 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 nonresidence or other claim or filing for exemption or such compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of the 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 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);
(6) to the extent such Taxes would not have been imposed, deducted or withheld if the beneficiary of the payment had presented the Note for payment 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 (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(7) any payment under or with respect to a Note to any Holder that is a fiduciary or partnership or any person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; or
(8) any combination of items (1) through (7) above. 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 Issuer or a Guarantor.
(c) The Issuer or the applicable Guarantor will also make any applicable withholding or deduction and remit the full amount deducted or withheld to the relevant authority in accordance with applicable law. The Issuer or the applicable Guarantor will furnish to the Trustee, within 30 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts 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 Issuer or such Guarantor. Copies of such receipts or other documentation will be made available to the Holders or the Paying Agent, as applicable, upon request.
(d) At least 30 days prior to each date on which any payment under or with respect to any 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 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 officers’ certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable such Trustee and Paying Agents to pay such Additional Amounts to Holders of Notes on the payment date. Each officers’ certificate shall be relied upon until receipt of a further officers’ certificate addressing such matters.
(e) Whenever in this Indenture or the Notes there is mentioned, in any context, the payment of principal, premium, if any, interest or of any other amount payable under or with respect to any Note, 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 Issuer and the Guarantors will pay any present or future stamp, court or documentary taxes or any other excise, property or similar taxes, charges or levies 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 agree to indemnify the Holders of the Notes for any such taxes paid by such Holders.
Appears in 1 contract
Samples: Indenture (Crown Holdings Inc)
Payment of Additional Amounts. (a) The Unless otherwise required by Bermuda law, neither the Company shall pay nor any amounts due Guarantor will deduct or withhold from payments made with respect to the Securities and the Guarantors will pay Guarantees, if any, on account of any amounts present or future Taxes. In the event that either the Company or any Guarantor is required to withhold or deduct on account of any Taxes due from any payment made under or with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either Guarantees, as the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company or such Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee after such deduction or withholding amount received by each Holder of Securities will equal the principal amount, redemption price and interest (amount that the Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder to the following instances:
extent: (1a) if that any withholding Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Jurisdiction Holder and Bermuda, other than the holding or ownership mere receipt of the Security payment, acquisition, ownership or disposition of such Securities or the collection exercise or enforcement of principal amountrights under the Securities, redemption pricethe Guarantees, repurchase price and interest (if any), in accordance with the terms of the Securities and or this Indenture, or the enforcement ; (b) of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (c) that any such Taxes would not have been imposed but for the presentation of the Securities, where presentation is required, for payment on a date more than 30 days after the date on which 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 thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period; (d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif: (i) the making of the declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; and (ii) at least 60 days prior to the first payment with respect to which the Company or such Guarantor shall apply this clause (d), the Company or such Guarantor shall have notified all Holders of the Securities in writing that they shall be required to provide this declaration or claim; (e) 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 or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code; (f) any Taxes imposed on overall net income or any branch profits Taxes; (g) that a beneficiary or settlor with respect to a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment; or (h) any combination of the foregoing. The Company and such Guarantor shall also (w) withhold or deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance with all applicable laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments. In addition, the Company or any Guarantor will 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 with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the Guarantees, such Guarantor) shall deliver to the Trustee and the Securities Administrator an Officers’ 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 the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable on or with respect to any of the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.07 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Samples: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. (a) The Company is required by Mexican law to deduct and to withhold 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 Holder such additional amounts due with respect (“Additional Amounts”) on those payments to the Securities and extent described in this Section 3.13. To the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) extent Taxes imposed by or 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 Mexico or any political subdivision or taxing authority of thereof or therein (“Mexican Taxes”) are required to be withheld or deducted from any such jurisdiction (payment, the “Taxing Jurisdiction”), unless Company shall pay such Additional Amounts as may be necessary to ensure that the net amount actually received by such Holder after such withholding or deduction is required by law. If equal to the amount that the Holder would have received had no such withholding or deduction or withholding is at any time been required, the Company or provided, however, that no such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) Amounts shall be payable in respect of principal amountany such Mexican Taxes required to be deducted, redemption price and interest withheld or otherwise imposed above the amount resulting from a withholding tax rate in Mexico of 4.9% (if any), resulting in accordance with the terms a maximum applicable gross-up of approximately 5.1525% of the Securities and stated amount of the relevant payment). Any reference in this Indenture, as may be necessary so that the net amounts paid to the holder Indenture or the Trustee after such deduction Notes to principal, premium, interest or withholding will equal any other amount payable in respect of the principal amount, redemption price and interest (if any), on the Securities. However, neither Notes by the Company nor any Guarantor will pay shall be deemed also to refer to any Additional Amounts that may be payable with respect to such amounts under the obligations referred to in this Section 3.13.
(b) The Company shall not pay Additional Amounts to any Holder for or on account of any of the following instancesfollowing:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because of the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with the Taxing Jurisdiction between such Holder and Mexico (other than the holding or ownership mere receipt of the Security a payment or the collection ownership or holding of principal amount, redemption price, repurchase price and interest (if anya Note), 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property transfer or similar tax, levyassessment or other governmental charge imposed with respect to the Notes;
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, impost identification, information, documentation or chargeother reporting requirement if (1) such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or reduction in the rate of, deduction or withholding of any Taxes for which the Company is required to pay Additional Amounts and (2) at least 30 days prior to the first Interest Payment Date or Change of Control Payment Date with respect to which the Company shall apply this clause (iii), the Company shall have notified the Holder that the Holder shall be required to comply with such requirement;
(iv) 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 more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period; and
(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder.
(c) Upon request, the Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of any Taxes deducted or withheld. The Company shall make copies of such documentation available to the Holders or the Paying Agent upon request.
(d) 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 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 (including Incurring any expenses whatsoever necessary to obtain such refund).
(e) In the event of any merger or other transaction described and permitted under Article IV that results in a Surviving Entity that is a U.S. or E.U. Country Person, then all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this Section 3.13 shall be deemed to also include the United States or relevant E.U. Country, as the case may be, and any political subdivision therein or thereof, United States or relevant E.U. Country law or regulations, and any taxing authority of the United States or the relevant E.U. Country or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Samples: Indenture (Grupo Iusacell Sa De Cv)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees shall be made without withholding or deduction or withholding for any and all present and or future withholding taxes, leviesduties, imposts and assessments or other governmental charges (a “withholding tax”) imposed of whatever nature imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland Brazil or any other jurisdiction in which either Successor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), except to the extent that such Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company or the Guarantor, as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as are necessary to ensure that the net amounts received by the Holders of Securities after such withholding or deduction equals the respective amounts of principal, premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Guarantor Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (A) a resident for tax purposes connection between the Holder and the Cayman Islands or Brazil 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 the Cayman Islands, 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 such Successor Jurisdiction, or any political subdivision or taxing authority of such jurisdiction (thereof or therein having power to tax as a precondition to exemption from, or reduction in the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredrate 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 such Guarantor, as applicable, will, to the fullest extent allowed by law other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to any in respect of estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, impost assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vi) in respect of any combination of 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 or the Guarantor’s obligation to pay Additional Amounts 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 materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Cayman Islands or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Cayman Islands or Brazil), regulation (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, 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 or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or any interest on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by the Cayman Islands or Brazil or any Successor Jurisdiction or any authority therein having power to tax, then such certificate shall specify, by country, the amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company or the Guarantor, as the case may be, (if payment is then due under the Guaranty) shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section. The Company and the Guarantor agree to 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 or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section, the obligation of the Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Guarantor, as the case may be, shall pay all stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by the Cayman Islands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guaranty.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor 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 outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the 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 Securities, 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 or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium or interest, 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 Additional Amounts 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 Repurchase Price payable in respect of 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 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) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees shall be made without withholding or deduction or withholding for any and all present and or future withholding taxes, leviesduties, imposts and assessments or other governmental charges (a “withholding tax”) imposed of whatever nature imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland Brazil or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Successor Jurisdiction, or any political subdivision or taxing authority of such jurisdiction therein or thereof having power to tax (the “Taxing JurisdictionForeign Taxes”), unless except to the extent that such Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such political subdivision or authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company or the Guarantor, as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as are necessary to ensure that the net amounts received by the Holders of such Securities after such withholding or deduction equals the respective amounts of principal, premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (a) a connection between the Holder and the Cayman Islands or Brazil 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 the Cayman Islands, Brazil or applicable political subdivision or authority therein or thereof having power to tax, of such Holder, if compliance is required by law. If such deduction jurisdiction, or withholding is at any time requiredpolitical subdivision or authority therein or thereof having power to tax, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and the Company or such the Guarantor, as applicable, willhas given the Holders at least 30 days’ notice that Holders will be required to provide such certification, to the fullest extent allowed by law identification or other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to in respect of any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, impost assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium, if any, on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vi) in respect of any combination of the above. For purposes of the provisions described in this Section 10.7.1, 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 or the Guarantor’s obligation to pay Additional Amounts set forth in clause (i)(b) above shall not apply if the provision of information, documentation or other evidence described in such clause (i)(b) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Cayman Islands or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Cayman Islands or Brazil), regulations (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, 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 or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or interest or premium, if any, on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by the Cayman Islands or Brazil or any Successor Jurisdiction or any political subdivision or authority therein or thereof having power to tax, then such certificate shall specify, by country, the amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company or the Guarantor, as the case may be, (if payment is then due under the Guarantees) shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section 10.7. The Company and the Guarantor agree to 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 or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.7, the obligation of the Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Guarantor, as the case may be, shall pay all stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by the Cayman Islands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guarantees.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor 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 outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the 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 paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Securities, 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 or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium, if any, or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium, if any, or interest, 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 Additional Amounts 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 Repurchase Price payable in respect of 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, if any, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to 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 (Embraer - Empresa Brasileira De Aeronautica S.A.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with respect Company, and each Subsidiary Guarantor, shall, subject to the Securities and the Guarantors will exceptions set forth below, pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the account Holders 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay Notes 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 every net payment of interest (including any premium paid upon redemption of the net amounts paid Notes and any discount deemed interest under Netherlands law) or principal to the holder Holders shall not be less than the amount provided for in the Notes. The term “net payment” means the amount that the Company, any Subsidiary Guarantor or a Paying Agent pays any Holder after deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges imposed with respect to that payment by the Netherlands or any jurisdiction where the Company or any Subsidiary Guarantor is incorporated or resident for tax purposes or from or through which any payment in respect of the Notes is made by the paying agent or the Trustee after such deduction Company, or withholding will equal the principal amount, redemption price and interest any political subdivision thereof (if anya “Relevant Jurisdiction”), on the Securities. Howeveror any taxing authority of a Relevant Jurisdiction.
(b) The Company, neither the Company nor any Guarantor will and each Subsidiary Guarantor, shall not pay any Additional Amounts in to any Holder for or solely on account of any of the following instancesfollowing:
(1i) if any withholding present or future taxes, duties, assessments or other governmental charges that would not be payable or due have been imposed but for any present or former connection between the fact that (i) the holder of a Security Holder (or a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of the Holder) and the Relevant Jurisdiction (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, capital gains, excise, personal property tax, sales, transfer, gift or similar tax, assessment or other governmental charge imposed with respect to the Notes;
(iii) any taxes, duties, assessments or other governmental charges that would not have been imposed but for the failure of the Holder or any other Person to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Jurisdiction, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law, regulation or by an applicable income tax treaty to which the Relevant Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the holdertax, if assessment or other governmental charge and the holder is an estateCompany has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, trustidentification or information;
(iv) any tax, partnership duty, assessment or corporation), is a domiciliary, national other governmental charge payable otherwise than by deduction or resident of, withholding from payments on or engaging in business or maintaining a permanent establishment or being physically present in, respect of the Taxing Jurisdiction or otherwise having some Notes;
(v) any present or former connection future taxes, duties, assessments or other governmental charges with the Taxing Jurisdiction other than the holding or ownership of the Security or the collection of principal amountrespect to a Note presented for payment, 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 on which the payment became due and payable or was the date on which payment thereof is duly provided for, whichever is occurs later, except to the extent that the Holder of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
(2vi) if any withholding tax or deduction that is attributable required to be made pursuant to EC 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, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) any payment on the Note to a Holder that is a fiduciary, a partnership, a limited liability company or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership, an interestholder in such a limited liability company or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note; or
(viii) in the case of any combination of the items listed above.
(c) Upon request, the Company or any Subsidiary Guarantor, as applicable, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company or such Subsidiary Guarantor has paid any Additional Amount. The Company shall make copies of such documentation available to the Holders of the Notes or the relevant Paying Agent upon request.
(d) Any reference in this Indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by us will be deemed also to refer to any estateAdditional Amount that may be payable with respect to that amount under the obligations referred to in this section.
(e) In the event of any merger or other transaction described and permitted under Section 4.1, inheritancethen all references to the Netherlands, giftNetherlands law or regulations, salesand Netherlands political subdivisions or taxing authorities under this Section 3.18 and under Article IV and Section 5 of Exhibit A will be deemed to also include the jurisdiction of incorporation or tax residence of the Surviving Entity, transferif different from the Netherlands, exciseand any political subdivision therein or thereof, personal property law or similar taxregulations, levyand any taxing authority of such other jurisdiction or any political subdivision therein or thereof, impost or charge;respectively.
Appears in 1 contract
Payment of Additional Amounts. (a) The All payments made by Tyco or the Company shall pay any amounts due under or with respect to the Securities and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Authority (“Taxes”), unless Tyco or the 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 Tyco 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 Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company or such GuarantorGuarantees, as applicablethe case may be, willTyco or the Company, to as the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements)case may be, 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 amounts paid to the amount received by each holder or the Trustee of Securities (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a holder of Securities to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Securities or the collection exercise or enforcement of principal amountrights under such Securities, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and Guarantees or 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 payment became due or was provided for, whichever is later);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Taxes imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed 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 is later, except to the extent that the beneficiary or Holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption or to provide a certificate declaring its non-residence, levyif (x) the making of such declaration or claim or the provision of such certificate is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which Tyco or the Company shall apply this clause (d), Tyco or the Company shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim; or
(e) of any combination of Section 14.02(a), (b), (c) and (d). Such Additional Amounts also will not be payable where, had the beneficial owner of Securities been the Holder of such Securities, it would not have been entitled to payment of Additional Amounts by reason of Section 14.02(a), (b), (c), (d) or (e). Tyco or the Company, 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 Authority in accordance with all applicable laws. Tyco or the Company, as applicable, will use its 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. Tyco or the Company, as the case may be, will, upon request, make available to the holders 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 Tyco or the Company or if, notwithstanding Tyco’s or the Company’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by Tyco 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 Tyco or the Company will be obligated to pay Additional Amounts with respect to such payment, Tyco or the Company will deliver to the Trustee an 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 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 XIV shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which Tyco or the Company or any successor Person to Tyco or the 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 Tyco or the Company changes its jurisdiction in which it is organized or such Person becomes a successor to Tyco or the Company, as the case may be, shall be substituted for the date on which the series of Securities was issued. Whenever in this Indenture, the Securities or any 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) The Company shall pay any amounts due Issuer and the Guarantors will make all payments under or with respect to the Securities Notes and the Guarantors will pay Note Guarantees free and clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxes, levies, imposts and charges other liabilities related thereto) (a “withholding tax”hereinafter "Taxes") imposed or levied by or for the account on behalf of the Cayman IslandsCanada, Switzerland The Netherlands or any political subdivision or any authority or agency therein or thereof having power to tax, or by any other jurisdiction in which either the Company Issuer or a any Guarantor is a organized or is otherwise resident or conducts business for tax purposes or any political subdivision jurisdiction from or taxing authority of such jurisdiction through which payment is made by the Issuer or any Guarantor or its agents (the “each a "Relevant Taxing Jurisdiction”"), unless such withholding the Issuer or deduction any Guarantor is required to withhold or deduct Taxes by lawlaw or by the interpretation or administration thereof. If such deduction the Issuer or withholding any Guarantor is at required to withhold or deduct any time requiredamount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes or any Note Guarantee, the Company Issuer or such Guarantor, as applicable, will, Guarantor will be required to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid amount received by Holders of the Notes after such withholding or deduction (including any withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount such Holders would have received if such Taxes had not been withheld or deducted.
(b) Notwithstanding the foregoing, the obligation to pay Additional Amounts shall not apply to any Taxes to the holder extent such Taxes would not have been so imposed
(i) but for the existence of any present or former connection between the relevant Holder (or the Trustee after beneficial owner of such Notes) and the Relevant Taxing Jurisdiction (other than the mere receipt of such payment or the mere acquisition, ownership, holding or disposition of any Note);
(ii) but for the failure of the relevant Holder (or the beneficial owner of such Notes) to use its reasonable best efforts, to the extent such Holder (or beneficial owner) is legally entitled to do so, to comply upon written notice by the Issuer or a Guarantor delivered 60 days prior to any payment date with a request to satisfy any certification, identification or other reporting requirements, which shall include any applicable forms or instructions, whether imposed by statute, treaty, regulation or administrative practice, concerning the nationality or residence of such Holder or the connection of such Holder with the Relevant Taxing Jurisdiction;
(iii) if the payment could have been made without such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, relevant Holder had presented the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 Note for payment within 60 days after the date on which such payment became due and payable or was the date on which payment thereof is duly provided for, whichever is laterlater (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 60-day period);
(2iv) if any withholding tax is attributable with respect to any estatepayment of principal of (or premium, inheritanceif any, gifton) or interest on such Note to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment, salesto the extent that a beneficiary with respect to such fiduciary, transfera member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, excisemember or beneficial owner been the actual Holder of such Note (but only if there is no material cost or expense associated with transferring such Notes to such beneficiary, personal partner or beneficial owner and no restriction on such transfer that is outside the control of such beneficiary, partner or beneficial owner); or
(v) with respect to any Canadian Taxes imposed on a payment of, in lieu of, on account of, or in satisfaction of, interest (including deemed interest) made by the Issuer or a Guarantor which is a resident of Canada, where the beneficiary of such payment does not deal at arm's length with the Issuer or such Guarantor, as the case may be, for the purposes of the Income Tax Act (Canada). The Issuer and the Guarantors 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 and the Guarantors will make reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Issuer and the Guarantors will provide to the Trustee, within a reasonable time after the date the payment of any Taxes so deducted or withheld are due pursuant to applicable law, either a certified copy of tax receipts evidencing such payment 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 Issuer or such Guarantor. The Issuer and the Guarantors, jointly and severally, will indemnify and hold harmless each eligible Holder of Notes and, upon written request of any eligible Holder of Notes, reimburse such Holder for the amount of (i) any Taxes levied or imposed on and paid by such Holder as a result of payments made under or with respect to the Notes held by such Holder or any Note Guarantee; and (ii) any Taxes levied or imposed with respect to any reimbursement under the foregoing clause (i) or this clause (ii), so that the net amount received by such Holder after such reimbursement will not be less than the net amount such Holder 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 paragraph shall not extend to Taxes imposed for which the eligible Holder of Notes would not have been eligible to receive payment of Additional Amounts hereunder. At least 30 days prior to each date on which any payment under or with respect to the Notes is due and payable (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 Issuer will be obligated to pay Additional Amounts with respect to such payment, the Issuer will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders of Notes on the payment date. Each such Officers' Certificate shall be relied upon until receipt of a further Officers' Certificate addressing such matters. Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a redemption of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes or the Note Guarantees, such reference shall be deemed to include payment of Additional Amounts or indemnification payments as described hereunder to the extent that, in such context, Additional Amounts or indemnification payments are, were or would be payable in respect thereof. The Issuer will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar taxlevies that arise in any Relevant Taxing Jurisdiction from the execution, levydelivery, impost enforcement or charge;registration of the Notes, this Indenture, the Pledge Agreement or any other document or instrument in relation thereto, or the receipt of any payments with respect to the Notes, and the Issuer and the Guarantors, jointly and severally, will agree to indemnify the Holders for any such taxes paid by such Holders. The obligations described under this Section 4.18 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any successor Person to the Issuer or any Guarantor and to any jurisdiction in which the Issuer or any Guarantor is organized or is otherwise resident or conducts business for tax purposes or any jurisdiction from or through which payment is made by the Issuer or any Guarantors or their respective agents
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay If any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and or future withholding taxes, levies, imposts and assessments or other governmental charges of any jurisdiction (a “withholding tax”) imposed by or 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 thereof or therein) in which the Guarantor is resident for tax purposes shall at any time be required by such jurisdiction (the “Taxing Jurisdiction”), unless or any such withholding political subdivision 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”taxing authority) in respect of principal amountany amounts to be paid by the Guarantor under the Guarantee, redemption price and interest (if any)the Guarantor will pay to each Holder of Outstanding Securities as additional interest, in accordance with the terms of the Securities and this Indenture, such additional amounts as may be necessary so in order that the net amounts paid to the holder such Holder who, with respect to any such tax, assessment or the Trustee other governmental charge, is not resident in, or a citizen of, such jurisdiction, after such deduction or withholding will equal withholding, shall be not less than the principal amountamount to which such Holder is entitled; provided, redemption price and interest (if any)however, the Guarantor shall not be required to make any payment of additional amounts for or on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instancesaccount of:
(1i) if any withholding Any tax, assessment or other governmental charge which would not be payable or due have been imposed but for the fact that (ia) the holder existence of a Security any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the holderof such Holder, if the holder such Holder is an estate, trust, partnership partnership, limited liability company or corporation)) and the taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, is including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a domiciliary, national citizen or resident of, thereof or engaging being or having been present or engaged in trade or business therein or maintaining having had a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 therein or (iib) the presentation of an Outstanding Security (where presentation is required, the Security was presented ) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or was (y) the date on which payment thereof is duly provided for, whichever is occurs later;
(2ii) if any withholding tax is attributable to any Any estate, inheritance, gift, salessale, transfer, excise, personal property or similar tax, levy, impost assessment or other governmental charge;
(iii) Any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, Outstanding Securities;
(iv) Any tax, assessment or other governmental charge that is 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 beneficial owner or (b) to 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 Guarantor) or satisfy any information or reporting requirements, which, in the case of (a) or (b), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge, provided that, in the case of (b), the Holder is legally entitled to deliver such declaration or similar claim; or
(v) Any combination of items (i), (ii), (iii) and (iv) above; nor shall additional amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Outstanding Security to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent 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 such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been entitled to such additional amounts had it been the Holder of such Outstanding Security.
Appears in 1 contract
Samples: Indenture (Hilfiger Tommy Corp)
Payment of Additional Amounts. (a) The Company shall pay to Holders of the Securities all additional amounts (“Additional Amounts”) that may be necessary so that every net payment of interest or principal to the Holders of the Securities will not be less than the amount provided for in the Securities. For purposes of the preceding sentence, “net payment” means the amount that the Company or any amounts due Paying Agent will pay the Holder after the Company deducts or withholds an amount for or on account of any present or future taxes, duties, assessments or other governmental charges imposed with respect to that payment (or the Securities and payment of such Additional Amounts) by the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the account taxing authority of the Cayman Islands, Switzerland Mexico or any other jurisdiction in which either country under whose laws the Company or is organized at the time of payment, except for the United States (each, a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”). Notwithstanding the foregoing, unless such withholding the Company shall not be obligated to pay Additional Amounts to any Holder of a Security for or deduction is required by law. If such deduction on account of any of the following:
(i) any taxes, duties, assessments or withholding is other governmental charges imposed solely because at any time required, there is or was a connection between the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) in respect of principal amount, redemption price Holder and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the mere receipt of a payment, the ownership or holding or ownership of the such 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 rights with respect to such Security);
(ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or other similar tax, levyassessment or other governmental charge imposed with respect to such Security;
(iii) any taxes, impost duties, assessments or other governmental charges 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 the Taxing Jurisdiction of the Holder or any beneficial owner of such Security if compliance is required by law, regulation or by an applicable income tax treaty to which such Taxing Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and the Company has given the Holders at least 30 days’ written notice prior to the first payment date with respect to which such certification, identification or reporting requirement is required to the effect that Holders will be required to provide such information and identification;
(iv) any tax, duty, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on such Security;
(v) any taxes, duties, assessments or other governmental charges with respect to such Security presented for payment more than 15 days after the date on which the payment 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 extent that the Holder of such Security would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 15-day period;
(vi) any payment on such Security to a Holder that is a fiduciary or partnership or a Person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of such Security; and
(vii) any tax, duty, assessment or governmental charge imposed on payment to an individual and 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 taxation of savings. Notwithstanding the foregoing, the limitations on the Company’s obligation to pay Additional Amounts set forth in Section 1008(a)(iii) will not apply if the provision of information, documentation or other evidence described in Section 1008(a)(iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security than comparable information or other reporting requirements imposed under United States tax law, regulations (including proposed regulations) and administrative practice. In addition, the limitations on the Company’s obligations to pay Additional Amounts set forth in Section 1008(a)(iii) also will not apply with respect to any Mexican withholding taxes unless (a) the provision of the information, documentation or other evidence described in Section 1008(a)(iii) is expressly required by the applicable Mexican regulations, (b) the Company cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican regulations on its own through reasonable diligence and (c) the Company otherwise would meet the requirements for application of the applicable Mexican regulations. In addition, Section 1008(a)(iii) shall not be construed to require that any Person that is not a resident of Mexico for tax purposes, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax. The Company shall remit the full amount of any taxes withheld to the applicable taxing authorities in accordance with applicable law of the Taxing Jurisdiction. The Company shall also provide the Trustee with documentation (which may consist of copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company has paid any Additional Amount. The Company shall provide copies of such documentation to the Holders of the Securities or the relevant Paying Agent upon request. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company shall furnish the Trustee and each Paying Agent with an Officer’s Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or any interest on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by a Taxing Jurisdiction, then such certificate shall specify, by country, the 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 Trustee or such Paying Agent Additional Amounts, if any, required by this Section 1008. The Company agrees to indemnify the Trustee and each Paying Agent for, and to hold them harmless against, any loss, liability or expense incurred without willful misconduct on their part arising out of or in connection with actions taken or omitted by them in reliance on any Officer’s Certificate furnished pursuant to this Section 1008 or the failure to furnish any Officer’s Certificate.
(b) The Company shall pay all stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by Mexico or any governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture 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 provisions 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 Outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officer’s Certificate, as such certificate may become material in the administration of applicable tax laws.
(d) In the event that Additional Amounts actually paid with respect to the Securities 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 Securities, 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 Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(e) All references in this Indenture and the Securities to principal, premium, if any, or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium, if any, or interest or any other amounts payable, 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 Additional Amounts 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 payable in respect of such Security pursuant to any redemption 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 with respect to any such Redemption Price), and all such references to principal, premium, if any, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to Section 1009, and express mention of the payment of any Redemption Price, or any such other amount in those provisions hereof where such express reference is not made.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay will make all payments under the Notes without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or similar governmental charges (a “withholding taxTaxes”) imposed unless such Taxes are required to be withheld or deducted by or for (i) the account of the Cayman Islands, Switzerland laws (or any other regulations or rulings promulgated thereunder) of any taxing jurisdiction in which either or (ii) any official position regarding the Company application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a Guarantor is holding by a resident for tax purposes court of competent jurisdiction or any political subdivision or by a taxing authority of such jurisdiction (the “Taxing Jurisdiction”in a taxing jurisdiction), unless . If any such withholding or deduction at source is required with respect to any Tax imposed or levied by law. If such deduction or withholding is at any time requiredRelevant Taxing Jurisdiction, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the certain limitations and exceptions described below, pay to each holder of a Security with any relevant administrative requirements), pay Notes such additional amounts as may be necessary, if any, so that every net payment of principal, premium, if any, interest or any other amount made to such holder under the Notes, after such withholding or deduction, will equal the amount provided for in the Indenture to be then due and payable (the any such additional amounts, “Additional Amounts”).
(b) in respect of principal amountNotwithstanding the foregoing, 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will not be required to pay any Additional Amounts in the following instancesfor or on account of:
(1i) if any withholding Tax which would not be payable or due have been imposed but for the fact that (i) the applicable holder or beneficial owner of a Security Note (1) is or was a fiduciaryresident, settlor, beneficiary domiciliary or national of, member engages or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business in, maintains or maintaining maintained a permanent establishment in, or being is or was physically present in, the Relevant Taxing Jurisdiction or otherwise having had some other present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or receipt of payment under, such Note, (2) presented such Note for payment in the enforcement of the Security Relevant Taxing Jurisdiction, unless such Note could not have been presented for payment elsewhere, or (ii3) where presentation is required, the Security was presented such Note for payment more than 30 days after the date on which the payment in respect of such payment Note became due and payable or was provided for, whichever is later, except to the extent that the holder would have been entitled to such Additional Amounts if it had presented such Note for payment on any day within that 30‑day period;
(2ii) if any withholding tax is attributable to any estate, inheritance, gift, salesnet worth, transferwealth, sale, gains, excise, value added transfer, personal property or similar taxTax;
(iii) any Tax that is imposed or withheld by reason of the failure by the holder or beneficial owner of such Note to comply with any reasonable request by the Company addressed to the holder within 90 days of such request (1) to provide information concerning the nationality, levyresidence or identity of such holder or such beneficial owner or (2) to make any declaration or other similar claim or satisfy any information or reporting requirement, impost which is required or chargeimposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to an exemption from, or reduction in, such Tax;
(iv) any Tax that is imposed other than by means of withholding in respect of payments made under a Note;
(v) any withholding or deduction imposed pursuant to current Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof), any current or future regulations promulgated thereunder or official interpretations thereof, any intergovernmental agreements, treaties or conventions in connection therewith (or any laws, regulations or official administrative guidance implementing such agreements, treaties or conventions), and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof); or
(c) any combination of items (i), (ii), (iii), (iv) and (v) above. In addition, the Company will not pay Additional Amounts with respect to any holder who is a fiduciary or partnership or otherwise not the sole beneficial owner of such Note to the extent that a beneficiary, partner 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 such Note. In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees to provide to the Trustee and the Paying Agent information about the parties and/or transactions (including any modification to the terms of such transactions) reasonably requested by the Trustee to allow the Trustee or the Paying Agent to determine whether it has Tax-related obligations under Applicable Law. The obligations described in this Section 5.2 will survive any termination, defeasance or discharge of the Indenture. Prior to the date on which the payment of any Additional Amounts are due, the Company will deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable on the applicable Payment Date and setting forth the amounts so payable and any other information necessary to enable the Trustee (or applicable Paying Agent) to pay such Additional Amounts to holders on the Payment Date. Any such Officer’s 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).
Appears in 1 contract
Samples: Second Supplemental Indenture (Arch Capital Group Ltd.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for on behalf of Spain, Luxembourg, Mexico, the account of Netherlands, the Cayman IslandsBritish Virgin Islands or, 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 event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection ownership or holding of principal amount, redemption price, repurchase price and interest (if anya Note), 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge and we have given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification; provided, impost however, this clause (iii) shall not apply if the provision of information, documentation or charge;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.
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other 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, such directives,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, and
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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.
(e) 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 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 us. However, by making such assignment, the Holder makes no representation or warranty that we shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman IslandsUnited States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or any other jurisdiction or, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection ownership or holding of principal amount, redemption price, repurchase price and interest (if anya Note), 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge, impost and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or charge;withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other 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, such directives,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the 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
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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 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 Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (aj) The Company shall pay any amounts due All payments made by or on behalf of the Issuer under or with respect to the Securities and the Guarantors will pay any amounts due a Note, or a Guarantor under or with respect to the Securities Guarantees a Note Guarantee, shall be made free and clear of and without withholding or deduction for or withholding for on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (hereinafter, levies, imposts and charges (a “withholding taxTaxes”) 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 for the account on behalf of the Cayman Islands, Switzerland government of France or any other jurisdiction in which either the Company Issuer or a 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 such jurisdiction (the aforementioned being a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is will at any time requiredbe required to be withheld or 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 Issuer 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 Company Issuer or such the relevant Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements)shall, 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 amounts paid to amount received by the holder or the Trustee of such Note (including Additional Amounts) after such withholding or deduction by the applicable withholding agent of such Taxes (including any such Taxes on such Additional Amounts) shall not be less than the amount such holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that notwithstanding the principal amountforegoing, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instanceswill not be paid:
(1) if any withholding to the extent the Taxes giving rise to such Additional Amounts would not be payable have been imposed, deducted or due withheld but for the fact that (i) existence of any present or former connection between the holder Holder or beneficial owner of a Security Note (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of power over, the holderHolder or beneficial owner of such Note, if the holder Holder or beneficial owner is an estate, nominee, trust, partnership or corporation)) and the relevant Taxing Jurisdiction (other than the receipt of such payment or the acquisition, is a domiciliaryownership, national holding or resident disposition of, or engaging in business the execution, delivery, registration or maintaining a permanent establishment enforcement of, such Note or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security or the collection of principal amount, redemption price, repurchase price and interest (if anyNote Guarantee), 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable subject to subsection (e) of this Section 4.20, with respect to any estate, inheritance, gift, sales, transfer, excise, personal property transfer or similar tax;
(3) subject to subsection (e) of this Section 4.20, levywith respect to any Taxes payable otherwise than by deduction or withholding from payments under or with respect to such Note;
(4) to the extent such Taxes would not have been imposed, impost deducted or chargewithheld 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 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 precondition to exemption from, or reduction in the rate of the 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 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 beneficiary of the payment had presented the Note for payment 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 (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(6) with respect to any payment under or with respect to a Note to any Holder that is a fiduciary or partnership or any person other than the sole beneficial owner of such payment or Note, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment or Note would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder of such Note; and
(7) any combination of items (1) through (6) above. 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 Issuer or a Guarantor.
Appears in 1 contract
Samples: Indenture (Crown Holdings Inc)
Payment of Additional Amounts. (a) i. The Company Partnership shall pay make all payments on the Series 15 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 for the Series 15 Preferred Units or (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 law. If such deduction or withholding is at any time required, the Company or such GuarantorPartnership shall, as applicable, will, subject to the fullest extent allowed by law (subject limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to compliance by the holder this Part XVI of a Security with any relevant administrative requirements)Schedule A, pay to the Series 15 Holders 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 distributions as may be necessary so that the every net amounts paid payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the holder amounts the Partnership would otherwise have been required to pay had no such withholding or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securitiesbeen required.
ii. However, neither the Company nor any Guarantor will The Partnership shall not be required to pay any Additional Amounts in the following instancesfor or on account of:
(1a) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or the enforcement receipt of the Security or (ii) where presentation is requiredpayment under, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;Series 15
Appears in 1 contract
Samples: Limited Partnership Agreement (Brookfield Infrastructure Partners L.P.)
Payment of Additional Amounts. (a) The Company shall pay All payments of principal and interest in respect of the Notes will be made without withholding or deduction for or on account of any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) taxes or duties of whatever nature imposed or levied by or for the account on behalf of the Cayman IslandsKingdom of Belgium, Switzerland the United States, or by any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Governmental Authority, or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”)thereof or therein, unless such withholding or deduction is required by law. If In such deduction or withholding is at any time requiredevent, the Company or Issuer will pay such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 shall be necessary so in order that the net amounts paid to the holder received by any Noteholder or the Trustee Couponholder, after such deduction withholding or withholding will deduction, shall equal the respective amounts of principal amount, redemption price and interest which would have been receivable in respect of the Note or Coupon (if any)as the case may be) in the absence of such withholding or deduction; provided, on the Securities. Howeverhowever, neither the Company nor any Guarantor will pay any that no such Additional Amounts in the following instancesshall be payable with respect to:
(1a) if any withholding would not be payable Note or due but Coupon presented for the fact that (i) the holder of a Security (payment by, or a fiduciary, settlor, beneficiary on behalf of, member a holder who is liable for such taxes or shareholder of, the holder, if the holder is an estate, trust, partnership duties in respect of such Note or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise Coupon by reason of his having some present or former connection with the Taxing Jurisdiction Kingdom of Belgium or the United States, other than the mere holding of such Note or ownership of the Security Coupon or the collection receipt of principal amount, redemption price, repurchase price and interest payments in respect thereto; or
(if any), in accordance with the terms of the Securities and this Indenture, b) any Note or the enforcement of the Security or (ii) where presentation is required, the Security was Coupon presented for payment more than 30 days after the date Relevant Date except to the extent that the holder thereof would have been entitled to such Additional Amounts on presenting the same for payment became due or was provided for, whichever is later;on such thirtieth day; or
(2c) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or any similar tax, assessment or other governmental charge; or
(d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal or interest, if any, with respect to such Note or Coupon; or
(e) any tax, duty, levy, impost assessment or other governmental charge that would not have been imposed but for the fact that such Noteholder or Couponholder presented (if presentation is required) such Note or Coupon for payment in the applicable taxing jurisdiction, unless such Note or Coupon could not have been presented for payment elsewhere; or
(f) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Noteholder or Couponholder or the beneficial owner of the Note or Coupon with a request of the Issuer or any Subsidiary Guarantor (a) to provide information concerning the nationality, residence or identity of the Noteholder or Couponholder or such beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of (a) or (b) is required or imposed by a statute, treaty, regulation or administrative practice of the applicable taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;; or
(g) in relation to Additional Amounts in respect of taxes and duties imposed or levied by the Kingdom of Belgium only, any Note or Coupon held by or on behalf of a holder who, at the time of issue of the Notes, was not an eligible investor within the meaning of Article 4 of the Royal Decree on 26 May 1994 on the deduction of withholding tax or who was an eligible investor at the time of issue of the Notes but, for reasons within the holder's control, ceased to be an eligible investor or, at any relevant time on or after the issue of the Notes, otherwise failed to meet any other condition for the exemption of Belgian withholding tax pursuant to the law of 6 August 1993 relating to certain securities; or
(h) any combination of (a) to (g); nor, in any case, with respect to the Issuer shall Additional Amounts be paid to any holder who is not the sole beneficial owner of such Note or Coupon to the extent that a beneficial owner thereof would not have been entitled to payment of Additional Amounts had such beneficial owner been the holder of such Note or Coupon. The Issuer shall be entitled to appoint an additional paying agent in the event payments by such paying agent will avoid the payment of an Additional Amount pursuant to this Section 6.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay shall be made without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil (a “withholding taxBrazilian Taxes”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction or political subdivision thereof having power to tax in which either the Company or a Guarantor any successor thereto is organized or incorporated or is a resident for tax purposes or any political subdivision or taxing authority of (“Foreign Taxes”), as applicable (each such jurisdiction (the jurisdiction, a “Relevant Taxing Jurisdiction”), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. In the event of any such withholding or deduction is required by law. If deduction, the Company shall make such deduction or withholding is at any time requiredwithholding, will make payment of the Company or such Guarantor, as applicable, will, amount so withheld to the fullest extent allowed by law (subject appropriate governmental authority and will pay to compliance by the holder of a Security with any relevant administrative requirements), pay each Holder 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 in order that every net payment made by the net amounts paid to Company on the holder or the Trustee Securities after such withholding or deduction for or withholding on account of any Brazilian Taxes or Foreign Taxes will equal the principal amountrespective amounts of principal, redemption price premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (if any)including for any Foreign Taxes payable in respect of Additional Amounts) been required, on the Securities. However, neither the Company nor any Guarantor will pay any except that no such Additional Amounts in the following instancesshall be payable with respect to any payment on a Security:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of to, or to a Security (or a fiduciary, settlor, beneficiary third party on behalf of, member a Holder who is liable for any such taxes, duties, assessments or shareholder of, other governmental charges in respect of such Security by reason of (a) a connection between the holder, if the holder is an estate, trust, partnership or corporation), is Holder and a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Relevant Taxing Jurisdiction other than the mere holding or ownership of such Security and the Security or the collection receipt of principal amount, redemption price, repurchase price and interest (if any), in accordance payments with the terms of the Securities and this Indenture, or the enforcement of the 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 a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to comply with such requirement;
(ii) where presentation in respect of any such taxes, duties, assessments or other governmental charges with respect to a Security surrendered (if surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any withholding tax is attributable European Union Directive on the taxation of savings 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, such directive;
(iv) in respect of any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(v) in respect of any tax, impost assessment or charge;other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium, if any, on any series of Securities or by direct payment by the Company in respect of claims made against the Company; or
(vi) in respect of any combination of the above.
Appears in 1 contract
Samples: Indenture (Embraer S.A.)
Payment of Additional Amounts. (a) The Company All payments of principal, premium and interest in respect of each Note shall pay be made free and clear of, and without withholding or deduction for, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) imposed or penalties or interest related thereto of whatever nature imposed, levied, collected, withheld or assessed by or 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 within Mexico or any political subdivision or taxing authority of such jurisdiction thereof or therein (the “Taxing Jurisdiction”"Mexican Taxes"), unless such withholding or deduction is required by lawlaw or by regulation. If In the event that any such withholding or deduction in respect of principal, premium or withholding interest is at any time so required, the Company or Issuer shall pay such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “"Additional Amounts”") as will result in receipt by each holder of any Note of such amounts as would have been received by such holder with respect of principal amountto such Note had no such withholding or deduction been required, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so except that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any no Additional Amounts in the following instancesshall be payable for or on account of:
(1) if any withholding would not be payable tax, duty, assessment or due but for the fact that other governmental charge imposed solely by reason of
(iA) the existence of any present or former connection between such holder or the beneficial owner of a Security such Note and Mexico (or a fiduciary, settlor, beneficiary of, member any political subdivision or shareholder of, taxing authority thereof or therein) other than merely holding such Note or the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident receipt of, or engaging enforcement of rights under, the Notes, or the receipt of payments in respect thereof, including, without limitation, such holder or the beneficial owner of such Note being or having been a national, domiciliary or resident thereof or being or having been present or engaged in a trade or business therein or maintaining having had a permanent establishment or being physically present in, fixed base therein; or
(B) the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction other than the holding or ownership presentation of the Security or the collection of principal amount, redemption price, repurchase price and interest such Note (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 on which the payment in respect of such payment Note became due and payable or was provided for, whichever is later, except to the extent that such holder would have been entitled to such Additional Amounts if it had presented such Note for payment on the last day of such period of 30 days;
(2) if any withholding tax is attributable to any estate, inheritance, gift, salessale, transfer, excise, personal property or similar tax, levy, impost assessment or other governmental charge;
(3) any Mexican Taxes imposed at any time at a rate in excess of the Withholding Tax Effective Rate at such time solely as a result of the failure of the holder or beneficial owner of such Note to comply with any certification, identification, information, documentation or other reporting requirement if (i) such compliance is required by law, regulation or administrative practice or binding interpretation as a precondition to exemption from, or reduction in the rate of, deduction or withholding of Mexican Taxes, (ii) at least 60 days prior to the first interest payment date with respect to which the Issuer shall apply this paragraph (3), the Issuer shall have notified the holders of the Notes, in writing, that such holders or beneficial owners of the Notes will be required to comply with such requirement and (iii) the notification described in clause (ii) shall have been furnished to holders of the Notes through DTC (or its custodian, if applicable) or by other comparable means in such a manner as to have reasonably afforded such holders or beneficial owners a reasonable time and opportunity to so comply;
(4) any Mexican Taxes imposed at any time at a rate in excess of the Withholding Tax Effective Rate at such time, but only to the extent that (i) such holder or beneficial owner has failed to provide on a timely basis, at the reasonable request of the Issuer (subject to the conditions set forth below), information, documentation or other evidence (not described in paragraph (3) above) concerning whether such holder or beneficial owner is eligible for benefits under a treaty for the avoidance of double taxation to which Mexico is a party if necessary to determine the appropriate rate of deduction or withholding of Mexican Taxes under such treaty or under any law, (ii) at least 60 days prior to the first payment date with respect to which the Issuer shall make such reasonable request, the Issuer shall have notified the holders of the Notes, in writing, that such holders or beneficial owners of the Notes will be required to provide such information, documentation or other evidence and (iii) the notification described in clause (ii) shall have been furnished to holders of the Notes through DTC (or its custodian, if applicable) or by other comparable means in such a manner as to have reasonably afforded such holders or beneficial owners a reasonable time and opportunity to provide the information, documentation or other evidence required by this paragraph;
(5) any Mexican Taxes if the beneficial owner of, or Person ultimately entitled to obtain an interest in, such Notes would not be entitled to the payment of Additional Amounts had such beneficial owner or Person been the holder of the Notes;
(6) any Mexican Taxes payable otherwise than by withholding from payments on or in respect of any Note; or
(7) any combination of items (1), (2), (3), (4), (5) or (6).
Appears in 1 contract
Samples: Indenture (Vitro Sa De Cv)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay shall be made without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil (a “withholding taxBrazilian Taxes”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction or political subdivision thereof having power to tax in which either the Company or a Guarantor any successor thereto is organized or incorporated or is a resident for tax purposes or any political subdivision or taxing authority of (“Foreign Taxes”), as applicable (each such jurisdiction (the jurisdiction, a “Relevant Taxing Jurisdiction”), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. In the event of any such withholding or deduction is required by law. If deduction, the Company shall make such deduction or withholding is at any time requiredwithholding, will make payment of the Company or such Guarantor, as applicable, will, amount so withheld to the fullest extent allowed by law (subject appropriate governmental authority and will pay to compliance by the holder of a Security with any relevant administrative requirements), pay each Holder 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 in order that every net payment made by the net amounts paid to Company on the holder or the Trustee Securities after such withholding or deduction for or withholding on account of any Brazilian Taxes or Foreign Taxes will equal the principal amountrespective amounts of principal, redemption price premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (if any)including for any Foreign Taxes payable in respect of Additional Amounts) been required, on the Securities. However, neither the Company nor any Guarantor will pay any except that no such Additional Amounts in the following instancesshall be payable with respect to any payment on a Security:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of to, or to a Security (or a fiduciary, settlor, beneficiary third party on behalf of, member a Holder who is liable for any such taxes, duties, assessments or shareholder of, other governmental charges in respect of such Security by reason of (a) a connection between the holder, if the holder is an estate, trust, partnership or corporation), is Holder and a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Relevant Taxing Jurisdiction other than the mere holding or ownership of such Security and the Security or the collection receipt of principal amount, redemption price, repurchase price and interest (if any), in accordance payments with the terms of the Securities and this Indenture, or the enforcement of the 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 a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will be required to comply with such requirement;
(ii) where presentation in respect of any such taxes, duties, assessments or other governmental charges with respect to a Security surrendered (if surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any withholding tax is attributable European Union Directive on the taxation of savings 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, such directive;
(iv) in respect of any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(v) in respect of any tax, impost assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium, if any, on any series of Securities or by direct payment by the Company in respect of claims made against the Company; or
(vi) in respect of any combination of the above. For purposes of the provisions described in this Section 10.7.1, 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 set forth in clause (i)(b) above shall not apply if the provision of information, documentation or other evidence described in such clause (i)(b) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (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 (including tax treaties between the United States and Brazil), regulations (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 applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or interest or premium, if any, on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by Brazil or any Successor Jurisdiction or any political subdivision or authority therein or thereof having power to tax, then such certificate shall specify, by country, the 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 Trustee or such Paying Agent Additional Amounts, if any, required by this Section 10.7. The Company agrees to 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 or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.7.
10.7.2 The Company shall pay all present or future stamp, 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 foregoing, with respect to the 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 outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the 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 paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Securities, 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 Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium, if any, or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium, if any, or interest, 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 Additional Amounts 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 Repurchase Price payable in respect of 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, if any, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to 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
Payment of Additional Amounts. (a) The Company shall pay Issuer will indemnify and hold harmless the Solicitation Agent against any documentary, stamp, registration or other tax, charge, levy or other amounts due imposed by Brazil on or in connection with respect the Exchange Offer or the Exchange Offer Material. All payments to be made to the Securities Solicitation Agent, the holders of the Eligible Existing Notes and soliciting dealers by the Guarantors will pay Issuer hereunder shall be made without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, levies, imposts and duties or governmental charges (a “withholding tax”) whatsoever imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Brazil or any political subdivision subdivisions thereof (or any taxing authority of authorities therein) unless the Issuer is compelled by law to deduct or withhold such jurisdiction (taxes, duties or charges. In that event, the “Taxing Jurisdiction”), unless Issuer shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made; provided however, no such additional amounts shall be payable (i) in respect of any tax, duty or governmental charge that would not have been imposed but for the existence of any present or former connection between the Solicitation Agent, the relevant holder or soliciting dealer, as the case may be, and the relevant taxing jurisdiction, other than by entering into or performing this Agreement, and (ii) in respect of any tax, duty or governmental charge that would not have been imposed but for the failure of the Solicitation Agent, the relevant holder or the soliciting dealer, as the case may be, to comply with any reasonable certification, identification, documentation or information or other reporting requirement if such compliance is required by law. If such , regulation, administrative practice or applicable treaty as a precondition to or exemption from or reduction in the rate of deduction or withholding is at any time requiredof such taxes; and provided, further, that the Company or such Guarantor, as applicable, will, Issuer shall deliver to the fullest extent allowed by law (subject to compliance by Solicitation Agent, within 10 days following the holder payment of a Security with any relevant administrative requirements)such tax, pay additional amounts (the “Additional Amounts”) in respect of principal amountduty or charge, redemption price and interest (if any), in accordance with the terms evidence of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after payment of such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost duty or charge;.
Appears in 1 contract
Samples: Solicitation Agency Agreement (Brazilian Communitary Antennae LTD)
Payment of Additional Amounts. (a) The Company shall pay will make all payments on the Series B Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “Relevant Taxing Jurisdiction”), unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (x) the laws (or any regulations or rulings promulgated thereunder) of any Relevant Taxing Jurisdiction or (y) 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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law. If such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, subject to certain limitations and exceptions described below, pay to the fullest extent allowed by law (subject to compliance by holders of the holder of a Security with any relevant administrative requirements), pay Series B Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as dividends as may be necessary so that the every net amounts paid payment, after such withholding or deduction (including any such withholding or deduction from such additional amounts), will be equal to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither amounts the Company nor any Guarantor would otherwise have been required to pay had no such withholding or deduction been required.
(b) The Company will not be required to pay any Additional Amounts in the following instancesadditional amounts for or on account of:
(1i) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or the enforcement receipt of the Security payment under, such Series B Preference Shares or any Series B Preference Shares presented for payment (ii) where presentation is required, the Security was presented required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment became first becomes due and payable, but if the full amount of the moneys payable has not been received by the dividend disbursing agent on or was provided forprior to such due date, whichever is laterit means the first date on which, the full amount of such moneys having been so received and being available for payment to holders, notice to that effect shall have been duly given to the holders of the Series B Preference Shares;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay any amounts due Unless otherwise specified as contemplated by Section 3.01, with respect to Debt Securities, Payments and Missed Payments, if any, on any such Debt Securities will be paid by the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees Company, without deduction or withholding for for, or on account of, any and all present and future withholding income, stamp and other taxes, levies, imposts and charges (a “withholding tax”) imposed imposts, duties, charges, fees, deductions or withholdings now or hereafter imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes United Kingdom or any political subdivision or any taxing authority of such jurisdiction thereof or therein having the power to tax (the “Taxing Jurisdiction”), unless such deduction or withholding or deduction is required by law. If such deduction or withholding is of any such taxes, levies, imposts, duties, charges, fees, deductions or withholdings shall at any time requiredbe required by the Taxing Jurisdiction, the Company will pay such additional amounts of, or such Guarantorin respect of, as applicablethe principal amount of, will(and premium, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirementsif any, on), pay additional amounts Payments and Missed Payments, if any, on such Debt Securities (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 in order that the net amounts paid to the holder or the Trustee Holders of such Debt Securities, after such deduction or withholding will withholding, shall equal the principal amountrespective amounts of principal, redemption price premium, Payments and interest (Missed Payments, if any), on which would have been payable in respect of such Debt Securities had no such deduction or withholding been required, provided that the Securities. Howeverforegoing will not apply to any such tax, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any levy, impost, duty, charge, fee, deduction or withholding which would not be have been payable or due but for the fact that (i) the holder Holder of the Debt Security or the owner of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), beneficial interest therein is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having has some present connection or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security a Debt Security, or the collection of any payment of (or in respect of) principal amount(premium, redemption price, repurchase price and interest (if any, on), in accordance with the terms Payments and Missed Payments, if any, or of the Securities and this Indenture, or the enforcement of the Security or of, any Debt Security, (ii) where presentation the relevant Debt Security or Coupon or other means of payment of Payments or Missed Payments, if any, in respect of Debt Securities is requiredpresented for payment in the United Kingdom, (iii) the relevant Debt Security was or other means of payment of Payments or Missed Payments, if any, in respect of Debt Securities is presented for payment more than 30 days after the date such payment became due or was provided for, whichever is later;
, except to the extent that the Holder would have been entitled to such Additional Amount on presenting the same for payment at the close of such 30 day period, (2iv) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed on a Payment or Missed Payment, if any, to an individual and is required to be made pursuant to the European Council Directive 2003/48/EC or any other European Union Directive on the taxation of savings income implementing the conclusions of the ECOFIN Council meeting of 26-27 November, 2000, or any law implementing or complying with, or introduced in order to conform to, such a directive; (v) presentation for payment of the relevant Debt Securities was made to a paying agent who was required to make (or pass through) such deduction or withholding and presentation for payment could have been made to a paying agent who was not required to make (or pass through) such deduction or withholding; (vi) presentation for payment of the relevant Debt Securities was made to a paying agent who was required to make (or pass through) such deduction or withholding and presentation for payment could have been made to a paying agent who was not required to make (or pass through) such deduction or withholding; (vii) there was a failure to comply by the Holder or the beneficial owner of the Debt Securities or the beneficial owner of any payment on such Debt Securities with a request of the Company addressed to the Holder or the beneficial owner, including a request of the Company related to a claim for relief under any applicable double tax treaty (x) to provide information concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or the beneficial owner or (y) to make any declaration or other similar claim to satisfy any information or reporting requirement, if the information or declaration is attributable required or imposed by a statute, treaty, regulation, ruling or administrative practice of the Taxing Jurisdiction as a precondition to exemption from withholding or deduction of all or part of the tax, duty, assessment or other governmental charge; (viii) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed in respect of any estate, inheritance, gift, salessale, transfer, excisepersonal property, personal property wealth or similar tax, duty, assessment or other governmental charge; or (ix) such tax, levy, impost impost, duty, charge, fee, deduction or charge;withholding is imposed in respect of any combination of the above items. Whenever in this Indenture there is mentioned, in any context, the payment of any principal of (and premium, if any, on), Payments or Missed Payments, if any, on any Debt Security of any series or the payment of any related Coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section, and express mention of the payment of additional amounts (if
Appears in 1 contract
Samples: Indenture (HSBC Holdings PLC)
Payment of Additional Amounts. (a) The Any and all payments by the Company hereunder or under the Convertible Notes to any Purchaser and each "qualified assignee" thereof shall pay any amounts due with respect to the Securities be made free and the Guarantors will pay any amounts due with respect to the Securities Guarantees clear of and without deduction or withholding for any and all present and or future withholding taxes, levies, imposts imposts, deductions, charges or withholdings, and charges all liabilities with respect thereto (a “withholding tax”all such taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes") imposed unless such Taxes are required by law or for the account of the Cayman Islands, Switzerland administration thereof to be deducted or any other jurisdiction in which either withheld. If the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction is shall be required by law. If such deduction law or withholding is at the administration thereof to deduct or withhold any time required, the Company Taxes from or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) in respect of principal amountany sum payable under the Convertible Notes (i) the holders of convertible Notes subject to such Taxes shall have the right, redemption price but not the obligation, following the Restricted Period, and interest for a period of thirty (if any), 30) days commencing upon the day it shall have received written notice form the Company that it is required to withhold Taxes to transfer all or any portion of the Convertible Notes to a qualified assignee to the extent such transfer can be effected in accordance with the terms other provisions of this Agreement and applicable law; (ii) the Securities and this Indenture, Company shall make such deductions or withholdings; (iii) the sum payable -------------------------------------------------------------------------------- SECURITIES PURCHASE AGREEMENT - Page 13 (American International Petroleum Corporation) 85478.4 shall be increased as may be necessary so that the net after making all required deductions or withholdings (including deductions or withholdings applicable to additional amounts paid under this Section 3.5) such Purchaser receives an amount equal to the holder or the Trustee after sum it would have received if no such deduction or withholding will equal had been made; and (iv) the principal amount, redemption price Company shall forthwith pay the full amount deducted or withheld to the relevant taxation or other authority in accordance with applicable law. A "qualified assignee" of a Purchaser is a Person that is organized under the laws of (I) the United States or (II) any jurisdiction other than the United States or any political subdivision thereof and interest that (if any), y) represents and warrants to each of the Company that payments of the company to such assignee under the laws in existence on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding date of this Agreement would not be payable subject to any Taxes and (z) from time to time, as and when requested by the company, executes and delivers to the Company and the Internal Revenue Service forms, and provides the Company with any information necessary to establish such assignee's continued exemption from Taxes under applicable law.
(b) The Company shall forthwith pay any present or due but for future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (all such taxes, charges and levies hereinafter referred to as "Other Taxes") which arise from any payment made under any of the fact that (i) Transaction Agreements or from the holder of a Security (execution, delivery or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident registration of, or engaging in business or maintaining a permanent establishment or being physically present inotherwise with respect to, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction this Agreement other than the holding or ownership Taxes payable solely as a result of the Security transfer from the Purchasers to a Person of any Security.
(c) The Company shall indemnify each Purchaser, or qualified assignee, for the collection full amount of principal amountTaxes or Other Taxes (including, redemption pricewithout limitation, repurchase price any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 3.5) paid by each Purchaser, or qualified assignee, and any liability (including penalties, interest (if any)and expenses) arising therefrom or with respect thereto, in accordance with whether or not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days from the terms date such Purchaser or assignee makes written demand therefor. A certificate as to the amount of such Taxes or Other Taxes submitted to the Company by such Purchaser or assignee shall be conclusive evidence of the Securities and this Indenture, or amount due from the enforcement of the Security or Company to such party.
(iid) where presentation is required, the Security was presented more than Within 30 days after the date such of any payment became due of Taxes, the Company will furnish to each Purchaser the original or was provided for, whichever is later;a certified copy of a receipt evidencing payment thereof.
(2e) if Each Purchaser shall provide to the Company a Form W-8, stating that it is a non-U.S. person, together with any withholding additional tax is attributable forms which may be required under the Code, as amended after the date hereof, to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;allow interest payments to be made to it without deduction. -------------------------------------------------------------------------------- SECURITIES PURCHASE AGREEMENT - Page 14 (American International Petroleum Corporation) 85478.4
Appears in 1 contract
Samples: Securities Purchase Agreement (American International Petroleum Corp /Nv/)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman IslandsUnited States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or any other jurisdiction or, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms ownership or holding of the Securities and this Indenture, or the enforcement of the Security or Notes),
(ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge, impost and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or charge;withholding from payments on the Notes,
(v) [Reserved],
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(c) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the 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 Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(c) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax- exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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. 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 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 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 Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with respect Issuer shall, subject to the Securities exceptions and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements)limitations set forth below, pay to a holder not domiciled in Peru of any Note as additional interest, 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 in order that every net payment by the net amounts paid to the holder Issuer or the Trustee after such deduction or withholding will equal a Paying Agent of the principal amount, redemption price of and interest (if any), on the Securities. Note and any other amounts payable on the Note after withholding or deduction for or on account of any present or future tax, assessment or governmental charge (and any fines, penalties or interest related thereto) (collectively, “Taxes”) imposed or levied by Peru or any political subdivision or taxing authority thereof or therein, shall not be less than the amount provided for in the Note to be then due and payable under the Notes.
(b) However, neither the Company nor any Guarantor will obligation by the Issuer to pay any Additional Amounts in the following instancesshall not apply:
(1i) if to any withholding or deduction that is imposed at a rate that exceeds 4.99% in the case of a holder that is a natural person;
(ii) to any present or future Tax that would not be payable or due have been so imposed but for the fact that for: (iA) the existence of any present or former connection between the holder of a Security (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, of the holder, if the holder is an estate, a trust, partnership a partnership, a limited liability company or a corporation)) and Peru and its possessions (other than the mere receipt of such payment or the ownership or holding of such Note by the relevant holder) including, is without limitation, the holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a domiciliary, national citizen or resident ofof Peru or being or having been engaged in a trade or business or present in Peru or having, or engaging in business or maintaining having had, a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 Peru; or (iiB) the presentation by the holder of any Note, where presentation is required, the Security was presented for payment on a date more than 30 days after the date such on which payment became due and payable or was the date on which payment thereof is duly provided for, whichever is occurs later;
(2iii) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excisecapital gains, excise or personal property tax or any similar tax, levy, impost assessment or governmental charge;
(iv) to any Tax that is payable otherwise than by withholding or deduction from payments of principal or interest in respect of any Note;
(v) to any Tax that would not have been imposed but for the failure to comply with certification, information or other reporting requirements concerning the nationality, residence or identity of the holder or beneficial owner of that Note, if compliance is required by statute or by regulation of Peru or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from the Tax; provided that the Issuer has, at least 30 days prior to the application of this clause, notified all holders of Notes that some or all holders of Notes shall be required to comply with such requirement;
(vi) to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to the European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 or any law implementing or complying with, or introduced in order to conform to such Directive;
(vii) to any Tax required to be withheld by any paying agent from any payment of the principal of, or interest on any Note, if such Tax results from the presentation of any Note for payment and the payment can be made without such withholding or deduction by the presentation of the Note for payment by at least one other Paying Agent; or
(viii) in the case of any combination of the items listed above.
(c) In addition, Additional Amounts shall not be paid with respect to any payment on a Note to a holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of that payment to the extent that payment would be required by the laws of Peru (or any political subdivision thereof) 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 who would not have been entitled to the Additional Amounts had that beneficiary, settlor, member or beneficial owner been the holder.
(d) The Issuer shall use commercially reasonable efforts to provide the Trustee, upon written request, with a certificate from an internal accountant of the Issuer, stamped by the relevant tax authority, evidencing any payment of Taxes in respect of which the Issuer has withheld or deducted, or paid any Additional Amounts. Copies of such documentation shall be made available to the holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(e) The Issuer undertakes that, to the extent that it is subject to the European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000, the Issuer shall use its reasonable efforts to maintain a paying agent in a European Union Member State that shall not be obliged to withhold or deduct tax pursuant to the Directive.
(f) All references in this Indenture to principal, interest, and other amounts payable hereunder shall be deemed to include references to any Additional Amounts payable under this Section with respect to such principal, interest or other amounts. The foregoing obligations shall survive any termination or discharge of the Notes and this Indenture.
(g) If the Trustee or a Noteholder is entitled to an exemption from or reduction of Taxes with respect to payments under this Indenture, the Trustee or such Noteholder (as applicable) shall provide to the Issuer, as reasonably requested by the Issuer (who shall provide the Trustee or the Noteholder, upon written request, as the case may be, the relevant documentation, forms and instructions prescribed by applicable law), such documentation as will permit payments under this Indenture to be made without withholding or at a reduced rate; provided, however, if any documentation or form referred to in this subsection (g) required the disclosure of information that the Trustee or the Noteholder, as the case may be, reasonably considers to be confidential, the Trustee or such Noteholder shall give notice thereof to the Issuer and shall not be obligated to include in such documentation or form such confidential information.
Appears in 1 contract
Samples: Indenture (Telefonica Del Peru Saa)
Payment of Additional Amounts. (a) The Company All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall pay be made free and clear of, and without withholding or deduction for or on account of any amounts due present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of Spain, Luxembourg, Mexico the Netherlands, the British Virgin Islands or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “Taxing Jurisdiction”) unless the 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.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredNotes, the Company Issuer or such Note Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection ownership or holding of principal amount, redemption price, repurchase price and interest (if anya Note), 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge and we have given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) 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 more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, impost whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, and
(vi) any payment on the Note to a Holder that is a fiduciary or charge;partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer, furnish such other documentation that provides reasonable evidence of such payment by the Issuer.
(d) In addition, clause (iii) of Section 3.21(b) does not require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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 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 us. However, by making such assignment, the Holder makes no representation or warranty that we shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) The Unless otherwise required by Bermuda law, neither the Company shall pay nor any amounts due Guarantor will deduct or withhold from payments made with respect to the Securities and the Guarantors will pay Guarantees, if any, on account of any amounts present or future Taxes. In the event that either the Company or any Guarantor is required to withhold or deduct on account of any Taxes due from any payment made under or with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either Guarantees, as the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company or such Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee after such deduction or withholding amount received by each Holder of Securities will equal the principal amount, redemption price and interest (amount that the Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder to the following instances:
extent: (1a) if that any withholding Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Jurisdiction Holder and Bermuda, other than the holding or ownership mere receipt of the Security payment, acquisition, ownership or disposition of such Securities or the collection exercise or enforcement of principal amountrights under the Securities, redemption pricethe Guarantees, repurchase price and interest (if any), in accordance with the terms of the Securities and or this Indenture, or the enforcement ; (b) of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (b) that any such Taxes would not have been imposed but for the presentation of the Securities, where presentation is required, for payment on a date more than 30 days after the date on which 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 thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period; (d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the making of the declaration or claim 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 (ii) at least 60 days prior to the first payment with respect to which the Company or such Guarantor shall apply this clause (d), the Company or such Guarantor shall have notified all Holders of the Securities in writing that they shall be required to provide this declaration or claim; (e) 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 or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code; (f) any Taxes imposed on overall net income or any branch profits Taxes; (g) that a beneficiary or settlor with respect to a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment; or (h) any combination of the foregoing. The Company and such Guarantor shall also (w) withhold or deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance with all applicable laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments. In addition, the Company or any Guarantor will 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 with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the Guarantees, such Guarantor) shall deliver to the Trustee and the Securities Administrator an Officers’ 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 the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable on or with respect to any of the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.07 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable). If payments with respect of the Securities or any Guarantees become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority thereof or therein having power to tax, levyother than or in addition to Bermuda or the United States or any political subdivision or taxing authority therein or thereof having power to tax, impost immediately upon becoming aware thereof the Company shall notify the Trustee in writing of such event, and thereupon the Company or charge;such Guarantor, as the case may be, shall be obligated to pay Additional Amounts in respect thereof on terms corresponding to the terms of the foregoing provisions of this Section 3.07 with the substitution for (or, as the case may be, in addition to) the references herein to Bermuda or any political subdivision or authority therein or thereof having power to tax of references to that other or additional Territory or any political subdivision
Appears in 1 contract
Samples: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. (a) The Company shall pay If, as a result of any amounts due with respect change in applicable law, regulation or treaty, or in any official application or interpretation thereof after the date of this Agreement or, if later, the date a Lender becomes a Lender hereunder, the Borrower is required by law or regulation to the Securities and the Guarantors will pay make any amounts due with respect to the Securities Guarantees without deduction deduction, withholding or backup withholding for of any and all present and future withholding taxes, levies, imposts imposts, duties, fees, liabilities or similar charges of the United States of America, any possession or territory of the United States of America (including the Commonwealth of Puerto Rico) or any area subject to the jurisdiction of the United States of America ("U.S. Taxes") from any payments to a Lender in respect of Loans then or thereafter outstanding, or other amounts owing hereunder, the amount payable by the Borrower will be increased to the amount which, after deduction from such increased amount of all U.S. Taxes required to be withheld or deducted therefrom, will yield the amount required under this Agreement to be payable with respect thereto; provided that the Borrower shall not be required to pay any additional amount pursuant to this subsection (c) to any Lender that (i) is not, on the date this Agreement is executed by such Lender or, if later, the date such Lender became a Lender hereunder, either (x) entitled to submit Form 1001 relating to such Lender and charges entitling it to a complete exemption from withholding on all amounts to be received by such Lender, including fees, pursuant to this Agreement and the Loans or Form 4224 relating to all amounts to be received by such Lender, including fees, pursuant to this Agreement and the Loans or (y) a “withholding tax”U.S. person (as such term is defined in Section 7701(a)(30) imposed by of the Code), or (ii) has failed to submit any form or certificate that it was required to file pursuant to subsection (a) of this Section 13.19 and entitled to file under applicable law, or (iii) is no longer entitled to submit Form 1001 or Form 4224 as a result of any change in circumstances other than a change in applicable law, regulation or treaty or in any official application or interpretation thereof. Within 30 days after the Borrower's payment of any such U.S. Taxes, the Borrower shall deliver to the Administrative Agent, for the account of the Cayman Islandsrelevant Lender(s), Switzerland originals or certified copies of official tax receipts evidencing such payment. The obligations of the Borrower under this subsection (c) shall survive the payment in full of the Loans and the termination of the Commitments. If any other jurisdiction in which either Lender or the Company Administrative Agent determines it has received or been granted a Guarantor is credit against or relief or remission for, or repayment of, any taxes paid or payable by it because of any U.S. Taxes paid by a resident for Borrower and evidenced by such a tax purposes receipt, such Lender or any political subdivision or taxing authority the Administrative Agent shall, to the extent it can do so without prejudice to the retention of the amount of such jurisdiction (credit, relief, remission or repayment, pay to the “Taxing Jurisdiction”), unless Borrower such withholding amount as such Lender or deduction Administrative Agent determines is required by law. If attributable to such deduction or withholding is at any time required, the Company and which will leave such Lender or Administrative Agent (after such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”payment) in respect of principal amount, redemption price and interest (no better or worse position than it would have been in if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid such Borrower had not been required to the holder or the Trustee after make such deduction or withholding will equal withholding. Nothing in this Agreement shall interfere with the principal amount, redemption price right of each Lender and interest (if any), on the Securities. However, neither Administrative Agent to arrange its tax affairs in whatever manner it thinks fit nor oblige any Lender or the Company nor Administrative Agent to disclose any Guarantor will pay information relating to its tax affairs or any Additional Amounts computations in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;taxes.
Appears in 1 contract
Samples: Replacement Credit Agreement (Strategic Timber Trust Inc)
Payment of Additional Amounts. (a) The Company shall pay All payments that the Company, any amounts due Subsidiary Guarantor or any Successor makes under or with respect to the Securities and the Guarantors will pay Securities, or that any amounts due Subsidiary Guarantor makes with respect to the Securities Guarantees any Guarantee, will be made free and clear of, and without withholding or deduction for or withholding for on account of, any and all present and or future withholding taxestax, leviesduty, imposts and levy, impost, assessment or other governmental charges (a including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company Company, or, if applicable, any Subsidiary Guarantor or a Guarantor any Successor, as the case may be, is a 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 or taxing authority of such jurisdiction thereof (the each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Company, such withholding Subsidiary Guarantor or deduction such Successor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Company, a Subsidiary Guarantor or such deduction Successor is required to withhold or withholding is at deduct any time requiredamount for, or on account of, Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities or any Guarantee, the Company Company, such Subsidiary Guarantor or such GuarantorSuccessor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 to ensure that the net amounts paid to amount received by each Holder of the holder or the Trustee Securities after such withholding deduction will be not less than the amount the Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted. Notwithstanding the principal amount, redemption price and interest (if any), on the Securities. Howeverforegoing, neither the Company Company, any Subsidiary Guarantor nor any Guarantor will Successor will, however, be required to pay any Additional Amounts to a Holder or beneficial owner of Securities in the following instancesrespect of or on account of:
(1a) if any withholding would not be payable Taxes that are imposed or due but for the fact that (i) the holder of levied by a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Relevant Taxing Jurisdiction by reason of the Holder’s or otherwise having some 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 a trade or business, being or having been, physically present in or having or having had a permanent establishment in a Relevant Taxing Jurisdiction other than (but not including in each case, any connection arising from the mere receipt or holding of Securities or ownership 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);
(b) any Taxes that are imposed or levied by reason of the Security failure of the Holder or beneficial owner of Securities, following the collection written request of principal amountthe Company, redemption price, repurchase price any Subsidiary Guarantor or any Successor (as the case may be) addressed to the Holder (and interest (if any), made at a time that could enable the Holder or beneficial owner acting reasonably to comply with that request) made in accordance with the terms of notice procedures set forth in the Securities and this 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, as a precondition to exemption from or reduction in the enforcement rate of withholding or deduction of, Taxes imposed by the Security Relevant Taxing Jurisdiction (including without limitation, a certification that the Holder or (ii) where presentation beneficial owner is required, not resident in the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is laterRelevant Taxing Jurisdiction);
(2c) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar taxTaxes;
(d) any Tax that is payable otherwise than by withholding or deduction from payments made under or with respect to the Securities;
(e) any Tax that is imposed or levied by reason of the presentation (where presentation is required 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, levywhichever is later, impost except to the extent that the beneficial owner or chargeHolder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(f) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is 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 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(g) 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 by presenting the Securities to another paying agent in a Member State of the European Union; or
(h) any combination of Items (a) through (g) above. Furthermore, Additional Amounts will not be paid with respect to the Securities to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of the payment under or with respect to the Securities, 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 who would not have been entitled to the Additional Amounts had it been the Holder of the Securities. The Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount withheld or deducted to the relevant taxing authority in accordance with applicable law. At least 30 calendar days prior to each date on which any payment under or with respect to the 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 Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date (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 Securities is due and payable, in which 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 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 or such Successor. If, notwithstanding the efforts of the Company, 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. 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 any 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 Securities 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, premium, if any, interest or any other amount payable under or with respect to any Security or with respect to any Guarantee, such reference includes the payment of Additional Amounts, if applicable.
Appears in 1 contract
Samples: Indenture (Mayfield Processing LLC)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer and the Guarantors, if any, 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 jurisdiction in which the Guarantors will pay Issuer or any amounts due Guarantor is organized, engaged in business, resident for tax purposes or generally subject to tax on a net income basis or from or through which payment on the Securities is made by the Issuer, any Guarantor or any paying agent in its capacity as such, or any political subdivision or authority thereof or therein having power to tax (a "Taxing Authority") and any interest, penalties and other liabilities with respect thereto (collectively "Taxes"), unless the Issuer or any Guarantor, as the case may be, is required to withhold or deduct such Taxes by law or by the relevant Taxing Authority's interpretation or administration thereof. In the event that the Issuer or any Guarantor is required to so withhold or deduct any amount for or on account of any such Taxes from any payment made under or with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxesthe Guarantees, levies, imposts and charges (a “withholding tax”) imposed by or for as 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”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company Issuer or such Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee amount (including Additional Amounts) received by each Holder of Securities after such withholding or deduction or withholding will equal the principal amountamount that such Holder would have received if such Taxes had not been required to be withheld or deducted; provided that upon the implementation of the Directive, redemption price the Issuer and interest (if any), on the Securities. However, neither Guarantors shall ensure that a Paying Agent is maintained in a member state of the Company nor any Guarantor will pay any European Union that is not obliged to withhold or deduct Taxes pursuant to such Directive; provided further that no Additional Amounts in the following instances:
(1) if any withholding would not will be payable with respect to a payment made to a Holder or due but for beneficial owner of Securities to the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;extent:
Appears in 1 contract
Payment of Additional Amounts. Any and all payments made by the Company to the Holders, under or with respect to the Securities, will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including any interest or penalties with respect thereto) imposed or levied by or on behalf of Mexico or any political subdivision thereof or by any authority or agency therein or thereof having power to tax (hereinafter "Mexican Withholding Taxes"), unless the withholding or deduction of such Mexican Withholding Taxes is required by law or by the interpretation or administration thereof. In the event any Mexican Withholding taxes are required to be so withheld or deducted the Company will (a) pay such additional amounts ("Additional Amounts") as may be necessary so that after making all required deductions or withholdings (including those applicable to additional sums payable under this provision) the net amount received by Holders or other beneficial owners of the Securities will not be less than the amounts as would have been received by them had no such withholding or deduction been required, (b) deduct or withhold such Mexican Withholding Taxes and (c) remit the full amount so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, no such Additional Amounts shall be payable for or on account of (a) any Mexican Withholding Taxes which would not have been imposed or levied on a Holder but for the existence of any present or former connection between the Holder or beneficial owner of the Securities and Mexico or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a citizen or resident of Mexico, (ii) maintaining or having maintained an office, permanent establishment, fixed base or branch therein, or (iii) being or having been present or engaged in trade or business therein, except for a connection solely arising from the mere ownership or, or receipt of payment under, such Securities or the exercise of rights under such Securities or the Indenture (personally or through the Trustee); (b) any estate inheritance, gift or similar tax, assessment or other governmental charge; (c) any Mexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Securities to comply with any certification, identification, information, documentation, declaration or other reporting requirement which is required or imposed by a statute, treaty, regulation, general rule or administrative practice as a precondition to exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirements, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Securities will be required to provide such certification, identification, information or documentation, declaration or other reporting; (d) any Mexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owners of such Securities to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company, to provide information, documentation or other evidence concerning the nationality, residence, identity, eligibility for benefits under a treaty for avoidance of double taxation to which Mexico is a party, which is in effect, present or former connection with Mexico or any political subdivision or territory or possession thereof or area subject to its jurisdiction, or of the Holder or beneficial owner of such Securities that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (d), the Company shall have notified the Trustee, in writing, that such Holders or beneficial owners of the Securities will be required to provide such information, documentation or other evidence; (e) 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, except to the extent that the Holder or the beneficial owner of such Securities should have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Securities for payment on any date during such 30-day period; or (f) any combination of items (a), (b), (c), (d) or (e) above. Notwithstanding the foregoing, the limitations on the Company's obligation to pay Additional Amounts set forth in clauses (c) and (d) of the preceding paragraph shall not apply if the provision of the certification, identification, information, documentation, declaration or other evidence described in such clauses (c) and (d) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between United States and Mexican law, regulation or administrative practice) than comparable information or other applicable reporting requirements imposed or provided for under United States federal income tax law (including the United States-Mexico Income Tax Treaty), regulations (including proposed regulations) and administrative practice (such as IRS Forms 1001, W-8, W-8BEN and W-9). In addition, the limitations on the Company's obligation to pay Additional Amounts set forth in clauses (c) and (d) above of the preceding paragraph shall not apply if Section VI of Article 154 of the Mexican Income Tax Law is in effect , unless (a) the provision of the certification, identification, information, documentation, declaration or other evidence described in above referred clauses (c) and (d) is expressly required by statute, regulation, general rules or administrative practice in order to apply Section VI of Article 154 of the Mexican Income Tax Law, the Company cannot obtain such certification, identification, information, or satisfy any other reporting requirements, on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Section VI of Article 154 of the Mexican Income Tax Law or (b) in the case of a Holder or beneficial owner of Securities that is a pension fund or other tax-exempt organization, such Holder or beneficial owner would be subject to Mexican Withholding Taxes at a rate that is lower than the rate resulting from the application of Section VI of Article 154 of the Mexican Income Tax Law if the information, documentation or other evidence required under above referred clauses (c) and (d) of the preceding paragraph were provided. In addition, clauses (c) and (d) of the preceding paragraph shall not be construed to require that a non-Mexican pension or retirement fund, a non-Mexican tax-exempt organization, a non-Mexican financial institution or any other Holder or beneficial owner of a Security obtains registration with the Ministry of Finance and Public Credit for the purpose of establishing eligibility of an exemption from or reduction of Mexican Withholding Taxes. Upon the Trustee's receipt of timely notification from the Company that the Holders or beneficial owners will be required to provide information or documentation, as described in clauses (c) and (d) above, the Trustee shall provide such notification to the Holders or beneficial owners, as the case may be. The Company will, upon written request, provide the Trustee, the Holders and the Paying Agent with a duly certified or authenticated copy of an original receipt of the payment of Mexican Withholding Taxes which the Company has withheld or deducted in respect of any payments made under or with respect to the Securities. The Trustee shall, for a period of five years following the due date for each payment, maintain in its files each such certified copy received from the Company. If the Company is obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities (other than Additional Amounts payable on the date of the Indenture), the Company will, upon written request, deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts are payable and the amounts so payable. The Company shall pay any amounts due stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”thereto) imposed or levied by or 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 Mexico (or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding thereof 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”therein) in respect of principal amountthe creation, redemption price issue and interest (if any), in accordance with the terms offering of the Securities and Securities. Except as specifically provided in the Security or this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would shall not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection required to make any payment with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable respect to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyduty, impost assessment or charge;other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein.
Appears in 1 contract
Samples: Indenture (Durango Corp)
Payment of Additional Amounts. Any amounts paid, or caused to be paid, by the Companies or their assignee (aor any successor to either Company or such assignee as permitted under this Indenture) The Company shall pay under the Guarantee, or paid by any amounts due with respect successor to the Securities and the Guarantors Companies under this Indenture, will pay any amounts due with respect to the Securities Guarantees be paid without deduction or withholding for any and all present and future withholding taxes, levies, imposts and or other governmental charges (a “withholding tax”) imposed whatsoever imposed, assessed, levied or collected by or for the account of the Cayman Islands, Switzerland United Kingdom (including any political subdivision or taxing authority thereof) or the jurisdiction of incorporation or residence (other than the United States or any other jurisdiction in which political subdivision thereof) of any assignee of the Companies or any successor to either the Company or a Guarantor is a resident for tax purposes the Guarantor, or any political subdivision or taxing authority of such jurisdiction thereof (the “Taxing an "Other Jurisdiction”"), unless such withholding or deduction is required by law. If such or, if deduction or withholding is of any taxes, levies, imposts or other governmental charges shall at any time requiredbe required by the United Kingdom or an Other Jurisdiction, the Company Companies, their assignee or such Guarantor, as applicable, will, to the fullest extent allowed by law any relevant successor will (subject to timely compliance by the holder Holders or beneficial owners of a Security the relevant Securities with any relevant administrative requirements), ) pay or cause to be paid such additional amounts (the “"Additional Amounts”") in respect of principal amountprincipal, redemption price and interest (premium, if any), in accordance with the terms of the Securities and this Indenture, or interest as may be necessary so in order that the net amounts paid to the holder Holders of the Securities or the Trustee under this Indenture, as the case may be, pursuant to this Indenture or the Guarantee, after such deduction or withholding will withholding, shall equal the principal amountrespective amounts of principal, redemption price and interest (premium, if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts or interest as specified in the following instancesSecurities to which such Holders or the Trustee are entitled; provided, however, that the foregoing shall not apply to:
(1) if any withholding present or future taxes, levies, imposts or other governmental charges which would not be payable have been so imposed, assessed, levied or due collected but for the fact that (i) the holder Holder or beneficial owner of a the relevant Security (is or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is has been a domiciliary, national or resident of, engages or engaging has been engaged in business business, maintains or maintaining has maintained a permanent establishment establishment, or being is or has been physically present in, the Taxing Jurisdiction United Kingdom or the Other Jurisdiction, or otherwise having has or has had some present or former connection with the Taxing United Kingdom or the Other Jurisdiction (other than the holding or ownership of the Security a Security, or the collection of principal amountof, redemption pricepremium, repurchase price if any, and interest (if any), in accordance with the terms of the Securities and this Indentureon, or the enforcement of the of, a Security or the Guarantee),
(ii2) any present or future taxes, levies, imposts or other governmental charges which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, the relevant Security was presented more than 30 thirty days after the date such payment became due or was provided for, whichever is later;,
(23) any present or future taxes, levies, imposts or other governmental charges which are payable otherwise than by deduction or withholding on or in respect of the relevant Security or guarantee,
(4) any present or future taxes, levies, imposts or other governmental charges which would not have been so imposed, assessed, levied or collected but for the Holders' failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United Kingdom or the Other Jurisdiction or any other relevant jurisdiction of the Holder or beneficial owner of the relevant Security, if such compliance is required by a statute or regulation of the United Kingdom or the Other Jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes, levies, imposts or other governmental charges,
(5) any withholding tax is attributable present or future taxes, levies imposts or other government charges (A) which would not have been so imposed, assessed, levied or collected if the beneficial owner of the relevant Note had been the Holder of such Note, or (B) which, if the beneficial owner of such Note had held the Note as the Holder of such Note, would have been excluded pursuant to clauses (1) through (4) above, or
(6) any estate, inheritance, gift, salessale, transfer, excise, personal property or similar tax, levy, impost or other governmental charge;. ARTICLE ELEVEN
Appears in 1 contract
Samples: Indenture (Us Industries Inc /De)
Payment of Additional Amounts. (a) i. The Company Partnership shall pay make all payments on the Series 17 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 for the Series 17 Preferred Units or (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 law. If such deduction or withholding is at any time required, the Company or such GuarantorPartnership shall, as applicable, will, subject to the fullest extent allowed by law (subject limitations and exceptions set forth in this Section 2(C)(e) and Section 2(C)(f) to compliance by the holder this Part XVIII of a Security with any relevant administrative requirements)Schedule A, pay to the Series 17 Holders 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 distributions as may be necessary so that the every net amounts paid payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the holder amounts the Partnership would otherwise have been required to pay had no such withholding or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securitiesbeen required.
ii. However, neither the Company nor any Guarantor will The Partnership shall not be required to pay any Additional Amounts in the following instancesfor or on account of:
(1a) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or receipt of payment under, the enforcement of the Security Series 17 Preferred Units or any Series 17 Preferred Units presented for payment (ii) where presentation is required, the Security was presented required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such units for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment became first becomes due and payable, but if the full amount of the moneys payable has not been received by the Paying Agent on or was provided forprior to such due date, whichever is laterit means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the Series 17 Holders;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Samples: Limited Partnership Agreement (Brookfield Infrastructure Partners L.P.)
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Issuer, Tyco and any amounts due other Guarantor under or with respect to the Securities and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Authority ("Taxes"), unless the Issuer, Tyco or such 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 Issuer, Tyco or such 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 Guarantees without deduction or withholding for any and all present and future withholding taxesthe Guarantees, levies, imposts and charges (a “withholding tax”) imposed by or for as 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”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company Issuer, Tyco or such Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Securities to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Securities or the collection exercise or enforcement of principal amountrights under such Securities, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and Guarantees or 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 payment became due or was provided for, whichever is later);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Tax imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed 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 is later, except to the extent that the beneficiary or Holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Issuer, Tyco or such Guarantor shall apply this clause (d), the Issuer, Tyco or such Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The Issuer, Tyco or such Guarantor, as applicable, 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 Authority in accordance with all applicable laws. The Issuer, Tyco or such Guarantor, as applicable, will use their reasonable 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 Issuer, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Securities, within 60 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 Issuer, Tyco or such Guarantor or if, notwithstanding the Issuer's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Issuer, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuer, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer, Tyco or such Guarantor will deliver to the Trustee an 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 Securities on the payment date. The foregoing provisions 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 Issuer, Tyco or such 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. In addition, the Issuer 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
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall will pay any amounts due with respect as additional interest on the 2013 Notes or 2013 Coupons to the Securities and holder or beneficial owner of any 2013 Note or 2013 Coupon who is a United States Alien such additional amounts (“Additional Amounts”) as may be necessary in order that every net payment by the Guarantors will pay Company or any amounts due with respect to Paying Agents of principal of, or interest on, the Securities Guarantees without 2013 Notes or 2013 Coupons, after deduction or withholding for for, or on account of, any and all present and or future withholding taxestax, leviesduty, imposts and charges (assessment or other governmental charge imposed upon, or as a “withholding tax”) imposed result of, such payment by or 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 United States or any political subdivision or taxing authority of thereof or therein, will not be less than the amount provided for in such jurisdiction (the “Taxing Jurisdiction”)Note or Coupon to be then due and payable before any such tax, unless such withholding duty, assessment or deduction is required by law. If such deduction or withholding is at any time requiredother governmental charge; provided, the Company or such Guarantorhowever, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid foregoing obligation to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instancesshall not apply to:
(1a) if any withholding tax, duty, assessment or other governmental charge which would not be payable or due have been so imposed but for the fact that (i) the existence of any present or former connection between such holder of a Security or beneficial owner (or between a fiduciary, settlor, beneficiary beneficiary, member, shareholder or other equity owner of, member or shareholder ofa person having a power over, the holdersuch holder or beneficial owner, if the such holder or beneficial owner is an estate, a trust, partnership a limited liability company, a partnership, a corporation or corporation)other entity) and the United States, is including, without limitation, such holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or other equity owner or person having such a domiciliary, national power) being or having been a citizen or resident of, or engaging treated as a resident thereof or being or having been engaged in a trade or business therein or maintaining being or having been present therein or having or having had a permanent establishment or being physically present intherein, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 the failure of such holder or beneficial owner to comply with any requirement under United States income tax laws and regulations to establish entitlement to an exemption from such tax, duty, assessment or other governmental charge (other than any such exemption which is conditioned upon the disclosure to the Company, any Paying Agent or any governmental authority of the nationality, residence or identity of the beneficial owner of the 2013 Note or 2013 Coupon), or (iii) such holder or beneficial owner being or having been with respect to the United States a personal holding company, a controlled foreign corporation, a passive foreign investment company, a foreign private foundation, a foreign tax exempt organization or a corporation which accumulates earnings to avoid United States federal income tax;
(b) any tax, duty, assessment or other governmental charge imposed by reason of the holder or beneficial owner (i) owning or having owned, directly or indirectly, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Company, (ii) being a bank receiving interest described in section 881(c)(3)(A) of the Code or (iii) being a controlled foreign corporation with respect to the United States that is related to the Company by stock ownership;
(c) any tax, duty, assessment or other governmental charge which would not have been so imposed but for the presentation is required, by the Security was presented holder or beneficial owner of such 2013 Note or 2013 Coupon for payment on a date more than 30 days after the date on which such payment became due and payable or was the date on which payment thereof is duly provided forfor and notice is given to holders, whichever is occurs later, except to the extent that the holder or beneficial owner would have been entitled to such Additional Amounts on presenting such 2013 Note or 2013 Coupon on any date during such 30-day period;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Payment of Additional Amounts. Unless otherwise provided in the Board Resolution or supplemental indenture pursuant to Section 3.01 establishing the terms of a particular series of Securities, all payments of principal (aand premium, if any) The Company shall pay and interest and Deferred Interest, if any amounts due with by or on behalf of the Issuer in respect to the Securities and the Guarantors of any Security will pay be made without withholding or deduction for, or on account of, any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf of the Cayman IslandsUnited Kingdom, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision sub-division of, or taxing any authority of such jurisdiction of, or in, the United Kingdom having power to tax (the “Taxing Jurisdiction”), unless such the withholding or deduction of such taxes, duties, assessments or governmental charges is required by law. If such deduction or withholding is at any time requiredIn that event, the Company or Issuer will in respect of payments of principal (and premium, if any) and interest and Deferred Interest, if any pay such Guarantor, additional amounts on the Security as applicable, will, to shall be necessary in order that the fullest extent allowed by law (subject to compliance net amount received by the holder Holder of a the Security with after such withholding or deduction shall equal the respective amounts which would have been receivable in respect of the Security in the absence of any relevant administrative requirements), pay additional amounts requirements to make such presented for withholding or deduction (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 except that the net amounts paid to the holder or the Trustee after no such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts shall be payable in the following instancesrelation to any Security:
(1) if any withholding would not be payable presented for payment by, or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary on behalf of, member a Holder who is liable for such taxes, duties or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging governmental charges in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise respect of such Security by reason of his having some present or former connection with the Taxing Jurisdiction other than the mere holding of such Security; or
(2) presented for payment by, or ownership on behalf of, a holder who would be able to avoid such withholding or deduction by complying with any statutory requirements (including, but not limited to, obtaining and/or presenting any form of the Security certificate) or the collection by mailing a declaration or any other statement or claim for exemption (including, but not limited to, a declaration of principal amount, redemption price, repurchase price and interest (if anynonresidence), in accordance with the terms of the Securities and this Indenture, or the enforcement of the Security or but fails to do so; or
(ii3) where presentation is required, the Security was presented for payment more than 30 days after the date Relevant Date except to the extent that the relevant Holder would have been entitled to such Additional Amounts on presenting the Security for payment on such thirtieth day assuming that day to have been a Payment Day. No Additional Amounts will be paid as provided above with respect to any payment of principal of (or premium, if any, on) or interest, if any, or Deferred Interest, if any on any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of any such payment became due to the extent that a beneficiary or was settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of any such Security. Whenever in this Subordinated Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any, on) or interest, if any, or Deferred Interest (or, with respect to the Perpetual Subordinated Capital Securities, any other payments), if any on any Security, 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 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof 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 3.01(17), at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest and Deferred Interest, if any, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer will furnish the Subordinated Trustee for that series of Securities with an Officers’ Certificate instructing such Subordinated Trustee whether such payment of principal of (and premium, if any, on) and interest, if any, and Deferred Interest, if any, on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment, duty or other governmental charge referred to above or described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer will pay to the Subordinated Trustee for such series of Securities such Additional Amounts as may be required pursuant to the terms applicable to such series. The Issuer covenants to indemnify the Subordinated Trustee for such series of Securities and any Paying Agent for, whichever is later;
(2) if and to hold them harmless against, any withholding tax is attributable loss, liability or expense reasonably incurred without gross 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 10.07 or the failure to provide any estatesuch Officers’ Certificate. The obligations contained in the immediately preceding sentence of the Issuer shall survive payment of all of the Securities, inheritancethe satisfaction and discharge of this Subordinated Indenture, gift, sales, transfer, excise, personal property and the resignation or similar tax, levy, impost removal of the Subordinated Trustee or charge;any Paying Agent for such series of Securities.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay make all payments on the Series B Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 (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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law. If such deduction or withholding is at any time required, the Company or such Guarantorshall, as applicablesubject to certain limitations and exceptions described below, will, pay to the fullest extent allowed by law (subject to compliance by holders of the holder of a Security with any relevant administrative requirements), pay Series B Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as dividends as may be necessary so that the every net amounts paid payment, after such withholding or deduction (including any such withholding or deduction from such additional amounts), shall be equal to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither amounts the Company nor any Guarantor will would otherwise have been required to pay had no such withholding or deduction been required.
(b) The Company shall not be required to pay any Additional Amounts in the following instancesadditional amounts for or on account of:
(1i) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or the enforcement receipt of the Security payment under, such Series B Preference Shares or any Series B Preference Shares presented for payment (ii) where presentation is required, the Security was presented required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment became first becomes due and payable, but if the full amount of the moneys payable has not been received by the dividend disbursing agent on or was provided forprior to such due date, whichever is laterit means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the holders of the Series B Preference Shares;
(2ii) if any withholding tax is attributable to any estate, inheritance, gift, salessale, transfer, excise, personal property or similar tax, levyassessment or other governmental charge or any tax, impost assessment or other governmental charge that is payable otherwise than by withholding or deduction from payment of the liquidation preference or of any dividends on the Series B Preference Shares;
(iii) any tax, fee, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure by the holder of such Series B Preference Shares to comply with any reasonable request by the Company addressed to the holder within 90 days of such request (a) to provide information concerning the nationality, residence or identity of the holder or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from all or part of such tax, fee, duty, assessment or other governmental charge;
(iv) any tax, fee, duty, assessment or governmental charge required to be withheld or deducted under Sections 1471 through 1474 of the Code (or any Treasury regulations or other administrative guidance thereunder); or
(v) any combination of items (i), (ii), (iii) and (iv).
(c) In addition, the Company shall not pay additional amounts with respect to any payment on any such Series B Preference Shares to any holder that is a fiduciary, partnership, limited liability company or other pass-through entity other than the sole beneficial owner of such Series B Preference Shares if such 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 partner or settlor with respect to such fiduciary or a member of such partnership, limited liability company or other pass-through entity or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such additional amounts had it been the holder of the Series B Preference Shares.
Appears in 1 contract
Payment of Additional Amounts. (a) i. The Company Partnership shall pay make all payments on the Series 15 Preferred Units free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 for the Series 15 Preferred Units or (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 law. If such deduction or withholding is at any time required, the Company or such GuarantorPartnership shall, as applicable, will, subject to the fullest extent allowed by law limitations and exceptions set forth in this Section 2(C) (subject e) and Section 2(C)(f) to compliance by the holder this Part XVI of a Security with any relevant administrative requirements)Schedule A, pay to the Series 15 Holders 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 distributions as may be necessary so that the every net amounts paid payment made to such holders, after such withholding or deduction (including any such withholding or deduction from such Additional Amounts), shall be equal to the holder amounts the Partnership would otherwise have been required to pay had no such withholding or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securitiesbeen required.
ii. However, neither the Company nor any Guarantor will The Partnership shall not be required to pay any Additional Amounts in the following instancesfor or on account of:
(1a) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or the enforcement receipt of the Security or (ii) where presentation is requiredpayment under, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;Series 15
Appears in 1 contract
Samples: Limited Partnership Agreement
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Company, Tyco and any amounts due other Guarantor under or with respect to the Securities Notes and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, duties, levies, imposts and imposts, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 Taxing Authority (the “Taxing Jurisdiction”"TAXES"), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredthe Company, the Company Tyco or such Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company, Tyco or such 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 fullest extent allowed by law (subject to compliance by Notes or the holder of a Security with any relevant administrative requirements)Guarantees, as the case may be, the Company, Tyco or such Guarantor, as the case may be, will pay such additional amounts (the “Additional Amounts”"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 amounts paid to the holder or the Trustee amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Notes to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Notes or the collection exercise or enforcement of principal amountrights under such Notes, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and Guarantees or 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 payment became due or was provided for, whichever is later);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Taxes imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Notes or Guarantees (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 Additional Amounts had the Notes or Guarantees been presented for payment on any date during such 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company, Tyco or such Guarantor shall apply this clause (d), the Company, Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to provide such declaration or claim. The Company, Tyco or such Guarantor, 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 Authority in accordance with all applicable laws. The Company, Tyco or such Guarantor, as the case may be, will use its reasonable 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 Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Notes, within 60 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, Tyco or such Guarantor or if, notwithstanding the Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or Guarantees is due and payable, if the Company, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company, Tyco or such Guarantor will deliver to the Trustee an 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 Notes on the payment date. In addition, the Company, Tyco or such Guarantor, as the case may be, 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, Bermuda 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 Notes or the Guarantees. The foregoing provisions shall survive any termination or the discharge of the Indenture and shall apply MUTATIS MUTANDIS to any jurisdiction in which any successor Person to the Company, Tyco or such 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 such Person becomes a successor to the Company, Tyco or such Guarantor, as the case may be, shall be substituted for the date on which the series of Notes was issued. Whenever in the Indenture, the Notes 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 Notes or Guarantees, 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: Supplemental Indenture (Tyco International LTD /Ber/)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with respect Except to the Securities extent required by law, any and the Guarantors will pay all payments of, or in respect of, any amounts due with respect to the Securities Guarantees Note shall be made free and clear of and without deduction for or withholding for on account of any and all present and or future withholding taxes, levies, imposts imposts, deductions, charges or withholdings and charges (a “withholding tax”) all liabilities with respect thereto imposed by or for Canada, the account of the Cayman IslandsRussian Federation, Switzerland Cyprus or any other jurisdiction in with which either the Company or a any Guarantor is a resident for tax purposes has some connection (including any jurisdiction (other than the United States of America) from or through which payments under the Notes or the Guarantees are made) or any political subdivision of or any taxing authority of in any such jurisdiction ("Canadian Taxes," "Russian Taxes," "Cypriot Taxes" or "Other Taxes," respectively). If the “Taxing Jurisdiction”), unless such withholding Company or deduction is any Guarantor shall be required by law. If such deduction law to withhold or withholding is at deduct any time requiredCanadian Taxes, Russian Taxes, Cypriot Taxes or Other Taxes from or in respect of any sum payable under a Note or pursuant to a Guarantee, the sum payable by the Company or such Guarantor, as applicablethe case may be, willthereunder shall be increased by the amount ("Additional Amounts") necessary so that after making all required withholdings and deductions, the Holder shall receive an amount equal to the fullest extent allowed by law (subject to compliance by the holder of a Security with sum that it would have received had no such withholdings and deductions been made; provided that any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) such sum shall not be paid in respect of principal amountany Canadian Taxes, redemption price and interest Russian Taxes, Cypriot Taxes or Other Taxes to a Holder (if any), in accordance with the terms an "Excluded Holder") of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that a Note (i) resulting from the holder beneficial owner of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in such Note carrying on business or maintaining being deemed to carry on business in or through a permanent establishment or being physically present in, fixed base in the Taxing Jurisdiction relevant taxing jurisdiction or otherwise any political subdivision thereof or having some present or former any other connection with the Taxing Jurisdiction relevant taxing jurisdiction or any political subdivision thereof or any taxing authority therein other than the mere holding or ownership owning of such Note, being a beneficiary of the Security Guarantees, the receipt of any income or payments in respect of such Note 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, Guarantees or the enforcement of such Note or the Security or Guarantees, (ii) resulting from the Company or any Guarantor not dealing at arm's length (within the meaning of the Income Tax Act (Canada)) with such Holder at the time of such payment or at the time the amount of such payment is deemed to have been paid or credited or (iii) that would not have been imposed but for the presentation (where presentation is required, the Security was presented ) of such Note for payment more than 30 180 days after the date such payment became due and payable or was duly provided for, whichever occurs later. The Company or the Guarantors, as applicable, will also (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law, and, in any such case, the Company will furnish to each Holder on whose behalf an amount was so remitted, within 30 calendar days after the date the payment of any Canadian Taxes, Russian Taxes, Cypriot Taxes or Other Taxes is later;
due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or the Guarantors, as applicable. The Company will, upon written request of each Holder (2other than an Excluded Holder), reimburse each such Holder for the amount of (i) if any withholding tax is attributable Canadian Taxes, Russian Taxes, Cypriot Taxes or Other Taxes so levied or imposed and paid by such holder as a result of payments made under or with respect to any estateNotes, inheritanceand (ii) any Canadian Taxes, giftRussian Taxes, salesCypriot Taxes or Other Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (i) so that the net amount received by such Holder (net of payments made under or with respect to such Notes or the Guarantees) after such reimbursement will not be less than the net amount which the Holder would have received if Canadian Taxes, transferRussian Taxes, excise, personal property Cypriot Taxes or similar tax, levy, impost or charge;Other Taxes on such reimbursement had not been imposed.
Appears in 1 contract
Samples: Indenture (PLD Telekom Inc)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay shall be made without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil (a “withholding taxBrazilian Taxes”), the Netherlands (“Dutch Taxes”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction or political subdivision thereof having power to tax in which either the Company or a Guarantor any successor thereto is organized or incorporated or is a resident for tax purposes or any political subdivision or taxing authority of (“Foreign Taxes”), as applicable (each such jurisdiction (the jurisdiction, a “Relevant Taxing Jurisdiction”), unless the Company is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. In the event of any such withholding or deduction, the Company shall make such deduction or withholding, will make payment of the amount so withheld to the appropriate governmental authority and will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary in order that every net payment made by the Company on the Securities after such withholding or deduction for or on account of any Brazilian Taxes, Dutch Taxes or Foreign Taxes will equal the respective amounts of principal, premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (a) a connection between the Holder and a Relevant Taxing 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 a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law. If law as a precondition to exemption from all or a part of such deduction tax, duty, assessment or withholding is at any time required, other governmental charge and the Company or such the Guarantor, as applicable, will, has given the Holders at least 30 days’ notice that Holders will be required to the fullest extent allowed by law comply with such requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any withholding tax is attributable European Union Directive on the taxation of savings 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, such directive;
(iv) in respect of any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(v) in respect of any tax, impost assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium, if any, on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor; or
(vi) in respect of any combination of the above. For purposes of the provisions described in this Section 10.7.1, 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 or the Guarantor’s obligation to pay Additional Amounts set forth in clause (i)(b) above shall not apply if the provision of information, documentation or other evidence described in such clause (i)(b) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Dutch or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Netherlands or Brazil), regulations (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, 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 or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or interest or premium, if any, on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by the Netherlands or Brazil or any Successor Jurisdiction or any political subdivision or authority therein or thereof having power to tax, then such certificate shall specify, by country, the amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company or the Guarantor, as the case may be, (if payment is then due under the Guarantees) shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section 10.7. The Company and the Guarantor agree to 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 or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.7, the obligation of the Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Guarantor, as the case may be, shall pay all present and future stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by the Netherlands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guarantees.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor 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 outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the 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 paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Securities, 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 or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium, if any, or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium, if any, or interest, 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 Additional Amounts 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 Repurchase Price payable in respect of 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, if any, interest or Additional Amounts shall be deemed to mean and include any amount payable in respect hereof pursuant to 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
Payment of Additional Amounts. (a) The Company shall pay will make all payments of principal of, and premium (if any) and interest on, the Notes without withholding or deduction for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account of the Cayman Islandswithin Luxembourg, Switzerland or any other jurisdiction in which either the Company or a Guarantor ArcelorMittal is a resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority of such jurisdiction thereof or therein) (the each, as applicable, a “Taxing Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. If In the event that any such withholding or deduction or withholding is at any time so required, the Company or such Guarantorany successor entity, as applicablethe case may be, willwill make such deduction or withholding, make payment of the amount so withheld to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), appropriate governmental authority and will pay such additional amounts (the “Additional Amounts”) that will result in respect the receipt by the Holders of principal amountsuch amounts that would have been received by such Holders had no such withholding or deduction been required by the Relevant Jurisdiction, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so except that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any no Additional Amounts in the following instanceswill be payable:
(1a) if any withholding would not be payable for or due but for the fact that on account of:
(i) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(A) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Holder or beneficial owner of such Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, other than the merely holding or ownership of the Security such Note or the collection receipt of principal amount, redemption price, repurchase price and interest payments thereunder;
(if any), in accordance with B) the terms presentation of the Securities and this Indenture, or the enforcement of the Security or such Note (ii) where presentation is required, the Security was presented ) 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 payment Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is laterexcept 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;
(2C) the failure of the Holder or beneficial owner to comply with 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 tax or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is attributable to required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, salessale, transfer, excise, excise or personal property or similar tax, levy, impost assessment or other governmental charge;
(iii) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i) and (ii); or
(b) with respect to any payment of the 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 any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the Holder thereof. Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note, such mention will be deemed to include 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.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay any the Holders all Additional Amounts that may be necessary so that every net payment of interest, principal or other amounts due under the Notes will not be less than the amount provided for in the Notes. “Net payment” in the preceding sentence shall mean the amount the Company or the Paying Agent pays the Holder after deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxesthat payment by a Mexican taxing authority, levies, imposts and charges (a “withholding tax”) imposed by or 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 thereof or therein (the a “Taxing Relevant Jurisdiction”) (a “Net Payment”). However, unless such withholding the Company will not pay Additional Amounts to any holder for or deduction is required by law. If such deduction or withholding is on account of any of the following:
(a) any Taxes imposed because at any time requiredthere is or was a connection between the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over the Company relevant holder or such Guarantorbeneficial owner, as applicableif the relevant holder or beneficial owner is an estate, willnominee, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements)trust, pay additional amounts (the “Additional Amounts”partnership, limited liability company or corporation) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities Note and this Indenturethe Relevant Jurisdiction, as may be necessary so that the net amounts paid to the holder including such Holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security beneficial owner (or a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of power over the holder, if the relevant holder is an estate, trust, partnership or corporation), is beneficial owner) (i) being or having been a domiciliary, national citizen or resident ofthereof for tax purposes, (ii) maintaining or having maintained an office, permanent establishment, or engaging branch, in business all cases subject to taxation therein to which such payments on the Notes are attributable, or maintaining a permanent establishment (iii) being or being physically present in, the Taxing Jurisdiction or otherwise having some been present or former connection with the Taxing Jurisdiction engaged in a trade or business therein (other than the holding or ownership receipt of the Security payments or the collection ownership or holding of principal amount, redemption price, repurchase price and interest (if anya Note), 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 payment became due or was provided for, whichever is later;,
(2b) if any withholding tax is attributable to any estate, inheritance, gift, sales, transferuse, excise, transfer, personal property or similar tax, levyduty, impost assessment or other governmental charge imposed with respect to the Notes,
(c) any Taxes imposed because the Holder or any other person having a beneficial interest in the Notes fails to comply with any certification, information, documentation or other reporting requirement concerning the nationality, residence for tax purposes, certification or identity of the Holder or any beneficial owner of the Note with the Relevant Jurisdiction, if compliance is required by statute, rule, regulation, officially published administrative practice of the taxing jurisdiction or by an applicable income tax treaty, which is in effect, to which Mexico is a party, as a precondition to exemption from, or reduction in the rate of, the tax or other governmental charge;,
(d) any Taxes payable otherwise than by deduction or withholding from payments on the notes,
(e) any Taxes with respect to such note presented for payment more than 30 days after the date on which the payment 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 extent that the holders of such note would have been entitled to such Additional Amounts on presenting such note for payment on any date during such 30 day period,
(f) any payment on the Note to a Holder that is a fiduciary, intermediary or partnership (including an entity treated as a partnership for tax purposes) or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, intermediary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note,
(g) any Taxes imposed on or in respect of Section 1471 through 1474 of the Code (“FATCA”) (or any amended or successor version of FATCA), any current or future regulations or official interpretations thereof, any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation of FATCA, the laws of any Relevant Jurisdiction implementing FATCA or any such intergovernmental agreement, any agreement between either the Company and the United States or any authority thereof entered into for FATCA purposes, and any agreements entered into pursuant to Section 1471(b)(1) of the Code,
(h) any Taxes 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 another paying agent, and
(i) any combination of the above. The limitations on our obligations to pay Additional Amounts stated in clause (c) above will not apply if (a) the provision of the certification, information, documentation or other evidence described in clause (c) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note, in such holder’s reasonable judgment, taking into account any relevant differences between U.S. and Mexican law, rule, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation and published administrative practice, or (b) with respect to taxes imposed by Mexico or any political subdivision or taxing authority thereof or therein, Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article) is in effect, unless the provision of the certification, information, documentation or other evidence described in the third bullet is expressly required by statute, rule or regulation in order to apply Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article), the Company, cannot obtain such certification, information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Article 166, Section II, subsection a), of the Mexican Income Tax Law (or such successor of such Article). In addition, such clause (c) does not require, and should not be construed as requiring, that any person, including any non-Mexican pension fund, retirement fund or financial institution, of any nature, register with, or provide information to, the Ministry of Finance and Public Credit or the Mexican Tax Service Administration (Servicio de Administración Tributaria, or the SAT) to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax. Any reference in this Section 3.11, this Indenture, or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company will 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 Section 3.11. In the event that Additional Amounts actually paid with respect to the Notes pursuant to the this Section 3.11 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 us. However, by making such assignment, the holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto, including taking any action for such refund to be repaid. The Company shall remit the full amount of any Mexican Taxes withheld to the applicable taxing authorities in accordance with applicable law. The Company shall also provide the trustee at least five Business Days prior to the date of any payment of Additional Amounts with documentation satisfactory to the trustee including an Officer’s Certificate stating the fact that Additional Amounts will be payable and amount so payable and following such payment such other documentation evidencing the payment of Mexican or other Taxes in respect of which the Company has paid any Additional Amounts. The Company shall provide copies of such documentation to the Holders or the relevant paying agent upon written request. In the event of any merger or other transaction described and permitted under Section 4.1, all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this section (other than the fourth and fifth paragraphs above) and under Section 5.1 hereof and under the heading "Redemption for Taxation Reasons" under section 5 on the reverse side of the Note shall be deemed to also include the relevant Qualified Merger Jurisdiction, the law or regulations of the relevant Qualified Merger Jurisdiction, and any taxing authority of the relevant Qualified Merger Jurisdiction, respectively.
Appears in 1 contract
Samples: Indenture
Payment of Additional Amounts. (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 without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, levy, impost or charge which is payable otherwise than by withholding from payment of principal amount, redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction; 48 (6)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 April 3, 2020, 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;
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees shall be made without withholding or deduction or withholding for any and all present and or future withholding taxes, leviesduties, imposts and assessments or other governmental charges (a “withholding tax”) imposed of whatever nature imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland Brazil or any other jurisdiction in which either Successor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), except to the extent that such Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company or the Guarantor, as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as are necessary to ensure that the net amounts received by the Holders of Securities after such withholding or deduction equals the respective amounts of principal, premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Guarantor Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (A) a resident for tax purposes connection between the Holder and the Cayman Islands, 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 the Cayman Islands, 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 the Cayman Islands, Brazil or such Successor Jurisdiction, or any political subdivision or taxing authority of such jurisdiction (thereof or therein having power to tax as a precondition to exemption from, or reduction in the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredrate 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 such Guarantor, as applicable, will, to the fullest extent allowed by law other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to any in respect of estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, impost assessment or chargeother governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vi) in respect of any combination of the above.
Appears in 1 contract
Samples: Indenture (Vale Overseas LTD)
Payment of Additional Amounts.
(a) The Company Issuer shall pay any amounts due with make payments of, or in respect to of, principal, premium (if any) and interest on the Securities Notes free and the Guarantors will pay any amounts due with respect to the Securities Guarantees clear of, and without withholding or deduction for or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the on account of the Cayman Islandsany present or future tax, Switzerland levy, impost, duty, assessment or other governmental charge whatsoever and wherever imposed, assessed, levied or collected, including any other jurisdiction in which either the Company interest, additions to tax or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction penalties applicable thereto (the “Taxing JurisdictionTaxes”), unless such withholding or deduction is required by law. .
(b) If the Issuer or any Paying Agent is required to deduct or withhold any amount in respect of Taxes for the account of Panama (or any political subdivision thereof or any authority therein or thereof having the power to tax) or any other jurisdiction (or any political subdivision or any authority thereof or therein) from or through which such deduction or withholding is at any time requiredpayments are made (each, a “Relevant Jurisdiction”), the Company or Issuer shall pay to a Holder such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to amount received by such Holder will not be less than the holder amount such Holder would have received if such Taxes had not been withheld or deducted, it being understood that for Panama tax purposes the Trustee after payment of such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts will be deemed and construed as additional interest.
(c) The obligation to pay Additional Amounts to any Holder in the following instancesclause (b) immediately above, however, will not apply to or in respect of:
(1i) if any withholding Taxes that would not be payable have been so imposed, assessed, levied or due collected but for the fact that (i) the holder Holder or beneficial owner of a Security the Note (or a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the holderor possessor of a power over, such Holder, if the holder such Holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise ) having some present or former connection with the Taxing Jurisdiction other than the holding a Relevant Jurisdiction, including such Holder (1) being or ownership having been a domiciliary, national or resident of the Security or the collection of principal amountRelevant Jurisdiction, 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estateengaging or having been engaged in a trade or business in the Relevant Jurisdiction, inheritance(3) maintaining or having maintained an office, gift, sales, transfer, excise, personal property a permanent establishment or similar tax, levy, impost or charge;branch in the Relevant Jurisdiction or
Appears in 1 contract
Samples: Indenture
Payment of Additional Amounts. (a) The Company shall pay will make all payments of principal of, and premium (if any) and interest on, the Notes of any amounts due with respect to the Securities and the Guarantors will pay series without withholding or deduction for, or on account of, any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account of the Cayman Islandswithin Luxembourg, Switzerland or any other jurisdiction in which either the Company or a Guarantor ArcelorMittal is a resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority of such jurisdiction thereof or therein) (the each, as applicable, a “Taxing Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. If In the event that any such withholding or deduction or withholding is at any time so required, the Company or such Guarantorany successor entity, as applicablethe case may be, willwill make such deduction or withholding, make payment of the amount so withheld to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), appropriate governmental authority and will pay such additional amounts (the “Additional Amounts”) that will result in respect the receipt by the Holders of principal amountsuch amounts that would have been received by such Holders had no such withholding or deduction been required by the Relevant Jurisdiction, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so except that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any no Additional Amounts in the following instanceswill be payable:
(1a) if any withholding would not be payable for or due but for the fact that on account of:
(i) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(A) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Holder or beneficial owner of such Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, other than the merely holding or ownership of the Security such Note or the collection receipt of principal amount, redemption price, repurchase price and interest payments thereunder;
(if any), in accordance with B) the terms presentation of the Securities and this Indenture, or the enforcement of the Security or such Note (ii) where presentation is required, the Security was presented ) 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 payment Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is laterexcept 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;
(2C) the failure of the Holder or beneficial owner to comply with 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 tax or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is attributable to required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, salessale, transfer, excise, excise or personal property or similar tax, levy, impost 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 any payment of the 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 any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the Holder thereof. Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note, such mention will be deemed to include 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. (a) The Company shall pay any amounts due with All payments by the Issuer in respect to of the Securities Notes and the Guarantors Indenture and by the Guarantor in respect of the Guarantee and the Indenture will pay any amounts due with respect to the Securities Guarantees be made free and clear of and without deduction or withholding for or on account of any and all present and or future withholding taxes, leviesduties, imposts and assessments, fees or other governmental charges (a “withholding tax”"Taxes") imposed or levied by or for on behalf of Luxembourg, the account of the Cayman IslandsRussian Federation, Switzerland any jurisdiction from or any other jurisdiction in through which either the Company or a Guarantor payment is a resident for tax purposes made or any political subdivision or taxing authority of such jurisdiction thereof or therein (the “each, a "Taxing Jurisdiction”"), unless such withholding or deduction is required by law. If such the Issuer is required to make any withholding or deduction for or on account of any Taxes from any payment made under or with respect to the Notes, or if the Guarantor is required to make any withholding is at or deduction for or on account of any time requiredTaxes imposed by a Taxing Jurisdiction from any payment made under or with respect to the Guarantee, the Company or Issuer will pay (or, in respect of the Guarantee, the Guarantor will pay) as additional interest to any Holder of the Notes such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 in order that every net payment made by the net amounts paid to Issuer on such Note or by the holder or Guarantor on the Trustee Guarantee after such deduction or withholding for or on account of any Taxes will equal not be less than the principal amountamount then due and payable on such Note or the Guarantee. The foregoing obligation to pay Additional Amounts, redemption price and interest however, will not apply to any (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1i) if any withholding Taxes that would not be payable or due have been imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder of the Notes and any Taxing Jurisdiction other than the holding or ownership mere receipt of the Security such payment or the collection ownership or holding of principal amountsuch Note, 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 Taxes that would not have been imposed but for the presentation is required, by the Security was presented Holder of such Note for payment on a date more than 30 days after the date on which such payment became due and payable or was the date on which payment thereof is duly provided for, whichever is occurs later;
, (2iii) Taxes required to be deducted or withheld by any Paying Agent from a payment on a Note or the Guarantee, if such payment can be made without deduction or withholding by any withholding tax is attributable other Paying Agent, (iv) Taxes that would not have been imposed but for the failure of the Holder to comply with the Issuer's written request addressed to the Holder at least 60 days prior to the relevant payment to provide information with respect to any reasonable certification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the Taxing Jurisdiction of the Holder of such Note, (v) Taxes imposed on a payment to an individual that are required to be made pursuant to European Union Directive 2003/48/EC or any other European Union Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive and (vi) estate, inheritance, gift, salessale or excise tax. The Guarantee also applies to Additional Amounts payable by the Issuer. The Issuer or the Guarantor, transferas the case may be, exciseshall make any such withholding or deduction for or on account of Taxes and shall remit the full amount deducted or withheld to the relevant authority in accordance with the applicable law. The Issuer or the Guarantor, personal property as the case may be, shall furnish to the Holders of Notes that are outstanding on the date of the required payment within 30 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing that such payment has been made by the Issuer or similar taxthe Guarantor, levyas the case may be. The Issuer and the Guarantor shall indemnify and hold harmless each Holder on the date of the required payment of any Taxes and upon written request reimburse each such Holder for the amount of (i) any Taxes (other than net income taxes) levied on and paid by such Holder as a result of payments made under or with respect to the outstanding Notes or the Guarantee, impost (ii) any liability (other than any liability relating to any net income taxes) (including penalties, interest and expense) arising therefrom or charge;with respect thereto, and (iii) any Taxes imposed with respect to any reimbursement under clause (i) or (ii) above. At least 30 days prior to each date on which any payment under or with respect to the Notes or the Guarantee is due and payable, if the Issuer or the Guarantor, as the case may be, becomes obligated to pay Additional Amounts with respect to such payment, the Issuer or the Guarantor, as the case may be, shall deliver to the Trustee (and each Paying Agent other than the Trustee) an Officer's Certificate certifying that the Issuer will make a withholding or deduction for or on account of Taxes and remit the same to the relevant authority, attesting to the fact that such Additional Amounts will be payable and the amounts so payable, and setting forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal, interest (including Defaulted Interest) or any other amount payable on or with respect to any of the Notes or the Guarantee, such reference shall be deemed to include mention of the payment of Additional Amounts provided for in this Clause 4.11 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Clause 4.11, and express mention of the payment of Additional Amounts in certain provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. The Issuer and the Guarantor, jointly and severally, hereby covenant to indemnify the Trustee (and each other Paying Agent) (which shall include their respective directors, officers, employees and agents) for, and to hold it harmless against any loss, liability or reasonable expenses incurred without gross negligence, bad faith or wilful 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 Officer's Certificate furnished pursuant to this Clause 4.11 or the failure of the Trustee (or other Paying Agent) for any reason (other than its own gross negligence, bad faith or wilful misconduct) to receive on a timely basis such Officer's Certificate. The obligations of the Issuer and the Guarantor under this Clause 4.11 shall survive the resignation or removal of the Trustee or any Paying Agent, the termination of the Indenture and the payment of all amounts under or with respect to this Indenture, the Notes and the Guarantee.
Appears in 1 contract
Samples: Indenture (Mobile Telesystems Ojsc)
Payment of Additional Amounts. (a) The Company shall pay will make all payments of principal of, and premium (if any) and interest on the Notes of any amounts due with respect to the Securities and the Guarantors will pay series without withholding or deduction for, or on account of, any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account of the Cayman Islandswithin Luxembourg, Switzerland or any other jurisdiction in which either the Company or a Guarantor ArcelorMittal is a resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority of such jurisdiction thereof or therein) (the each, as applicable, a “Taxing Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. If In the event that any such withholding or deduction or withholding is at any time so required, the Company or such Guarantorany successor entity, as applicablethe case may be, willwill make such deduction or withholding, make payment of the amount so withheld to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), appropriate governmental authority and will pay such additional amounts (the “Additional Amounts”) as will result in respect receipt by the Holders of principal amountsuch amounts as would have been received by the Holders had no such withholding or deduction been required by the Relevant Jurisdiction, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so except that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any no Additional Amounts in the following instanceswill be payable:
(1a) if any withholding would not be payable for or due but for the fact that on account of:
(i) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(A) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Holder or beneficial owner of such Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, other than the merely holding or ownership of the Security such Note or the collection receipt of principal amount, redemption price, repurchase price and interest payments thereunder;
(if any), in accordance with B) the terms presentation of the Securities and this Indenture, or the enforcement of the Security or such Note (ii) where presentation is required, the Security was presented ) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, or interest on, such payment Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is laterexcept 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;
(2C) the failure of the Holder or beneficial owner to comply with a timely 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 tax or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is attributable to required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, salessale, transfer, excise, excise or personal property or similar tax, levy, impost assessment or other governmental charge;
(iii) any withholding or deduction in respect of any tax, duty, assessment or other governmental charge where such withholding or deduction is imposed or levied on a payment pursuant to (x) European Council Directive 2003/48/EC (as such directive has been or shall be amended or replaced) on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directives; or (y) the bilateral agreements concluded between the European Union member states and several third countries or dependent or associated territories of the European Union pursuant to article 17.2 of the European Council Directive 2003/48/EC (as such agreements may be amended and/or replaced); or
(iv) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i), (ii) and (iii); or
(b) with respect to any payment of the 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 any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the holder thereof. Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note, such mention will be deemed to include 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.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company All interest amounts payable in respect of the Notes shall pay any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees be made without deduction or withholding for or on account of any and all present and or future withholding taxes, levies, imposts and duties or governmental charges (a “of any nature whatsoever imposed or levied by way of deduction or withholding tax”) imposed by or for the account on behalf 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 Tax Jurisdiction (the “Taxing JurisdictionWithholding Taxes”), unless such deduction or withholding or deduction is required by law. If In the event of such withholding or deduction or withholding is at on payments of interest (but not in respect of the payment of any time requiredprincipal in respect of the Notes), the Company or such Guarantor, as applicable, willIssuer shall, to the fullest extent allowed permitted by law (subject to compliance by the holder of a Security with any relevant administrative requirements)law, 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 will be necessary so in order that the net amounts paid received by the Holders, after such withholding or deduction for or on account of any Withholding Taxes imposed upon or as a result of such payment by the Tax Jurisdiction, will equal the respective amounts which would otherwise have been receivable in the absence of such withholding or deduction; except that no such Additional Amounts shall be payable on account of any taxes, duties or governmental charges which:
(a) are payable by any person acting as custodian bank or collecting agent on the Holder’s or the beneficial owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or
(b) would not be payable to the holder or the Trustee after extent such deduction or withholding will equal could be avoided or reduced if the principal amount, redemption price and interest Holder or beneficial owner of the Note (if any), or any financial institution through which the Holder or beneficial owner holds the Notes or through which payment on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1Note is made) if any withholding would not be payable or due but for the fact that (i) makes a declaration of non-residence or other similar claim for exemption to the holder of a Security (relevant tax authority or a fiduciarycomplies with any reasonable certification, settlordocumentation, beneficiary of, member information or shareholder of, other reporting requirement imposed by the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 relevant tax authority or (ii) where presentation is requiredenters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the Holder or beneficial owner (or such financial institution) or concerning ownership of the Holder or beneficial owner (or financial institution) or concerning such Holder’s or beneficial owner’s (or such financial institution’s) nationality, residence, identity or connection with the jurisdiction imposing such tax; or
(c) are payable by reason of the Holder’s or the beneficial owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to be, derived from sources in, or are secured in, the Security was Tax Jurisdiction; or
(d) are presented for payment more than 30 days after the date Relevant Date except to the extent that the Holder or the beneficial owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the period of 30 days assuming that day to have been a Business Day; or
(e) are deducted or withheld by a paying agent from a payment if the payment could have been made by another paying agent without such deduction or withholding; or
(f) would not be payable if the Notes had been kept in safe custody with, and the payments had been collected by, a banking institution; or
(g) are payable by reason of a change in law or practice that becomes effective more than 30 days after the relevant payment became due of interest becomes due, or was is duly provided forfor and notice thereof is given in accordance with Section 11.04 of the Base Subordinated Indenture, whichever is occurs later;
. Moreover, all amounts payable in respect of the Notes shall be made subject to compliance with Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986 (2the “Code”), or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) if (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any withholding tax is attributable applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Amounts or otherwise indemnify a Holder or beneficial owner in connection with any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;such compliance with the Code.
Appears in 1 contract
Samples: Sixth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with respect or, if applicable, each Guarantor (pursuant to the Securities terms of the applicable Guarantee) (each, a “Payor”) will make all payments of, or in respect of, principal, premium (if any) and interest on the Guarantors will pay Notes, or any amounts due with respect payment pursuant to the Securities Guarantees Guarantees, as the case may be, free and clear of and without withholding or deduction for or withholding for on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest, and all present and future withholding taxesother liabilities related thereto) whatsoever imposed, leviesassessed, imposts and charges levied or collected (a “withholding taxTaxes”) imposed by or for the account of Bermuda, the Cayman Islands, Switzerland United Kingdom or any other jurisdiction in which either the Company or a any Guarantor is a organized, or resident for tax purposes, engaged in business for tax purposes or through which payment is made (or any political subdivision thereof or taxing any authority of such jurisdiction thereof having the power to tax) (the a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. law or by the official interpretation or administration thereof.
(b) If such deduction a Payor is required by a Relevant Taxing Jurisdiction to deduct or withholding is at withhold Taxes from any time requiredpayment of principal, premium (if any) and interest on the Company Notes, or such Guarantorany payments pursuant to the Guarantees, as applicablethe case may be, will, to the fullest extent allowed by law such Payor will pay (subject to compliance by the holder of a Security together with any relevant administrative requirements), pay such payments) 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 amounts paid to amount received in respect of such payments by the holder or the Trustee of such Note, after such deduction or withholding (including any such deduction or withholding in respect of such Additional Amounts) will equal not be less than the principal amountamount such holder would have received if such Taxes had not been withheld or deducted; provided, redemption price and interest (if any)however, on the Securities. However, neither the Company nor any Guarantor will that a Payor shall not be required to pay any Additional Amounts in the following instancesAmount for or on account of:
(1) if any withholding Taxes that would not be payable have been so imposed, assessed, levied or due collected but for the fact that (i) the holder or beneficial owner of a Security the applicable Note or Guarantee (or a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the or possessor of a power over, such holder, if the such holder is an estate, trust, partnership or corporation), ) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a trade or business or maintaining or having maintained a permanent establishment or being or having been physically present in, the a Relevant Taxing Jurisdiction or otherwise having or having had some present or former connection with the a Relevant Taxing Jurisdiction other than the holding or ownership of the Security of, or the collection of principal amountof, redemption price, repurchase price and interest premium (if any)) or interest on, in accordance with the terms of the Securities and this Indenture, a Note or the enforcement of the Security applicable Guarantee, as the case may be;
(2) any Taxes that would not have been so imposed, assessed, levied or (ii) collected but for the fact that, where presentation is requiredrequired in order to receive payment, the Security applicable Note or Guarantee was presented more than 30 days after the date on which such payment became due and payable or was provided for, whichever is laterlater except to the extent that the holder or beneficial owner thereof would have been entitled to Additional Amounts had the applicable Note or Guarantee been presented for payment on any day during such 30 day period;
(23) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes;
(4) any Taxes that are payable otherwise than by deduction or withholding from payments on or in respect of the applicable Note or Guarantee;
(5) 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 the applicable Note or Guarantee to comply with a written request addressed to the holders (A) to provide any certification, identification, information, documents or other evidence concerning the nationality, residence or identity of the holder or the beneficial owner or its connection with the Relevant Taxing Jurisdiction or (B) to make any valid or timely declaration or claim or satisfy any other reporting, information or procedural requirements relating to such matters if, in either case, compliance is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction as a condition to relief or exemption from such Taxes;
(6) any withholding or deduction that is imposed on the applicable Note or Guarantee that is presented for payment, where presentation is required, by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note or Guarantee to another paying agent in a member state of the European Union;
(7) any deduction or withholding arising on or in connection with FATCA; and
(8) any combination of the Taxes described in (1) through (7) above.
(c) In addition, Additional Amounts will not be paid with respect to any payment of the principal of, or any interest on, any of the applicable Notes or Guarantees to any holder of the applicable Notes or Guarantees that is a fiduciary, a partnership, a limited liability company or any person other than the sole beneficial owner of such payment to the extent 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 such fiduciary, 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 holder of the relevant Notes or Guarantees.
(d) The Payor 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 Payor will use reasonable efforts to obtain certified copies of tax receipts or such other reasonable evidence of the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes. The Payor will furnish to the Trustee (or to a holder upon written request), within a reasonable time after the date of the payment of any Taxes so deducted or withheld is made, such certified copies or proof of payment. The Payor will attach a certificate stating (x) that the amount of withholding Taxes evidenced by the certified copy or other proof of payment was paid in connection with payments in respect of the principal amount of Notes then outstanding and (y) the amount of such withholding Taxes paid per $1,000 principal amount of the Notes. Copies of such documentation will be available for inspecting during ordinary business hours at the office of the Trustee by the holders of the Notes upon written request and will be made available at the offices of the Paying Agent.
(e) As soon as reasonably practicable, prior to each Record Date preceding the related Interest Payment Date and each date on which any other payment under or with respect to the Notes or the Guarantee thereof is due and payable, if the Payor will be obligated to pay Additional Amounts with respect to such payment, the Payor 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 furnish such other information necessary to enable the Paying Agent to pay such Additional Amounts to holders on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts. Such Officer’s Certificate may be forwarded by the Trustee to the registered holder and also upon written request to any holder.
(f) Unless otherwise stated, references in any context to the payment of principal of, and any premium or interest on, any Note, other payment on or with respect to the Notes or any payment pursuant to the Guarantees, will be deemed to include payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(g) The Payor will 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 enforcement following the occurrence of any event of default of any Notes or any other document or instrument referred to therein. For the avoidance of doubt, no Payor shall be responsible for the payment or other discharge of such taxes, charges, or levies that arise as a result of, or in connection with, any transfer, assignment or the disposition of the Notes (or any rights attaching thereto) by any holder.
(h) The foregoing obligations will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor to a Payor is organized or any political subdivision thereof or any authority thereof or therein having the power to tax, levy, impost or charge;.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay make all payments on the Series C Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 (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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law. If such deduction or withholding is at any time required, the Company or such Guarantorshall, as applicablesubject to certain limitations and exceptions described below, will, pay to the fullest extent allowed by law (subject to compliance by holders of the holder of a Security with any relevant administrative requirements), pay Series C Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as dividends as may be necessary so that the every net amounts paid payment, after such withholding or deduction (including any such withholding or deduction from such additional amounts), shall be equal to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither amounts the Company nor any Guarantor will would otherwise have been required to pay had no such withholding or deduction been required.
(b) The Company shall not be required to pay any Additional Amounts in the following instancesadditional amounts for or on account of:
(1i) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or the enforcement receipt of the Security payment under, such Series C Preference Shares or any Series C Preference Shares presented for payment (ii) where presentation is required, the Security was presented required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment became first becomes due and payable, but if the full amount of the moneys payable has not been received by the dividend disbursing agent on or was provided forprior to such due date, whichever is laterit means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the holders of the Series C Preference Shares;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees shall be made without withholding or deduction or withholding for any and all present and or future withholding taxes, leviesduties, imposts and assessments or other governmental charges (a “withholding tax”) imposed of whatever nature imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland Brazil or any other jurisdiction in which either Successor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), except to the extent that such Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company or the Guarantor, as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as are necessary to ensure that the net amounts received by the Holders of such Securities after such withholding or deduction equals the respective amounts of principal, premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Guarantor Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (a) a resident for tax purposes connection between the Holder and the Cayman Islands or Brazil 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 the Cayman Islands, 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 such jurisdiction, or any political subdivision or taxing authority of such jurisdiction (thereof or therein having power to tax, as a precondition to exemption from, or reduction in the “Taxing Jurisdiction”)rate of, unless such withholding the tax, assessment or deduction is required by law. If such deduction or withholding is at any time required, other governmental charge and the Company or such the Guarantor, as applicable, willhas given the Holders at least 30 days’ notice that Holders will be required to provide such certification, to the fullest extent allowed by law identification or other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to any in respect of estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, impost assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vi) in respect of any combination of the above. For purposes of the provisions described in this Section 10.7.1, 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 or the Guarantor’s obligation to pay Additional Amounts set forth in clause (i)(b) above shall not apply if the provision of information, documentation or other evidence described in such clause (i)(b) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Cayman Islands or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Cayman Islands or Brazil), regulations (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, 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 or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or any interest or premium on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by the Cayman Islands or Brazil or any Successor Jurisdiction or any authority therein having power to tax, then such certificate shall specify, by country, the amount, if any, required to be deducted or withheld on such payment to Holders of such Securities, and the Company or the Guarantor, as the case may be, (if payment is then due under the Guarantees) shall pay or cause to be paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section 10.7. The Company and the Guarantor agree to 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 or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.7, the obligation of the Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Guarantor, as the case may be, shall pay all stamp, issue, registration, documentary or other similar duties, if any, which may be imposed by the Cayman Islands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guarantees.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor 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 outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the 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 paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Securities, 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 or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium or interest, 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 Additional Amounts 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 Repurchase Price payable in respect of 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 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 (Embraer - Empresa Brasileira De Aeronautica S.A.)
Payment of Additional Amounts. (a) The Company All payments of principal, premium, if any, and interest on Securities of any series shall pay any amounts due with respect to the Securities be made without set-off, counterclaim, fees, liabilities or similar deductions, and the Guarantors will pay any amounts due with respect to the Securities Guarantees free and clear of, and without deduction or withholding for any and all present and future withholding for, taxes, levies, imposts and imposts, duties, charges (a “withholding tax”) imposed or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Commonwealth of Puerto Rico or any political subdivision or taxing authority of such jurisdiction thereof or therein ("Taxes"). If the “Taxing Jurisdiction”), unless such withholding Company or deduction any agent thereof is required by law. If law or regu- 79 lation to make any deduction or withholding for or on account of Taxes, the Company shall pay such additional amounts ("Additional Amounts") as shall be necessary in order that the net amounts received by the Holders of the Securities of any series or the holders or beneficial owners of any interest therein or rights in respect thereof after such deduction or withholding shall equal the amount that would have been receivable thereunder in the absence of such deduction or withholding, except that no such Additional Amounts shall be payable:
(a) to any Holder of a Security or any interest therein or rights in respect thereof where such deduction or withholding is at required by reason of such Holder having some connection with the Commonwealth of Puerto Rico or any time required, political subdivision or taxing authority thereof or thereon other than the Company or mere holding of and payment in respect of such Guarantor, as applicable, will, to the fullest extent allowed by law security;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”b) 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 amounts paid to the holder or the Trustee after such any deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding that would not be payable or due have been required but for the fact that (i) presentation by the holder Holder of a Security (or for payment on a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 date more than 30 days after the Date of Maturity or the date such on which payment became due or was thereof is duly provided for, whichever is occurs later;; or
(2c) in respect of any deduction or withholding that would not have been required but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the Commonwealth of Puerto 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 compliance is required by the Commonwealth of Puerto Rico, or any withholding tax is attributable political subdivision or taxing authority thereof or therein, as a precondition to exemption from such deduction or withholding. Any reference in the Indenture to principal or interest shall be deemed also to refer to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;Additional Amounts that may be payable under this Section 1008.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay All payments that the Company, any amounts due Subsidiary Guarantor or any Successor makes under or with respect to the Securities and the Guarantors will pay Securities, or that any amounts due Subsidiary Guarantor makes with respect to the Securities Guarantees any Guarantee, will be made free and clear of, and without withholding or deduction for or withholding for on account of, any and all present and or future withholding taxestax, leviesduty, imposts and levy, impost, assessment or other governmental charges (a including, without limitation, penalties, interest and other similar liabilities related thereto) of whatever nature (collectively, “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company Company, or, if applicable, any Subsidiary Guarantor or a Guarantor any Successor, as the case may be, is a 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 or taxing authority of such jurisdiction thereof (the each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Company, such withholding Subsidiary Guarantor or deduction such Successor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration of law. If the Company, a Subsidiary Guarantor or such deduction Successor is required to withhold or withholding is at deduct any time requiredamount for, or on account of, Taxes of a Relevant Taxing Jurisdiction from any payment made under or with respect to the Securities or any Guarantee, the Company Company, such Subsidiary Guarantor or such GuarantorSuccessor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 to ensure that the net amounts paid to amount received by each Holder of the holder or the Trustee Securities after such withholding or deduction will be not less than the amount the Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted. Notwithstanding the principal amount, redemption price and interest (if any), on the Securities. Howeverforegoing, neither the Company Company, any Subsidiary Guarantor nor any Guarantor will Successor will, however, be required to pay any Additional Amounts to a Holder or beneficial owner of Securities in the following instancesrespect of or on account of:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of any Taxes that are imposed or levied by a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Relevant Taxing Jurisdiction by reason of the Holder’s or otherwise having some 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 a trade or business, being, or having been, physically present in or having or having had a permanent establishment in a Relevant Taxing Jurisdiction other than (but not including, in each case, any connection arising from the mere receipt or holding of Securities or ownership the receipt of payments thereunder or under a Guarantee or the exercise or enforcement of rights under any Securities or this Indenture or a Guarantee);
(ii) any Taxes that are imposed or levied by reason of the Security failure of the Holder or beneficial owner of Securities, following the collection written request of principal amountthe Company, redemption price, repurchase price any Subsidiary Guarantor or any Successor (as the case may be) addressed to the Holder (and interest (if any), made at a time that would enable the Holder or beneficial owner acting reasonably to comply with that request) made in accordance with the terms of the Securities and notice procedures set forth in this 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, as a precondition to exemption from, or reduction in the enforcement rate of withholding or deduction of, Taxes imposed by the Security Relevant Taxing Jurisdiction (including, without limitation, a certification that the Holder or (ii) where presentation beneficial owner is required, not resident in the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is laterRelevant Taxing Jurisdiction);
(2iii) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar taxTaxes;
(iv) any Tax that is payable otherwise than by withholding or deduction from payments made under or with respect to the Securities;
(v) any Tax that is imposed or levied by reason of the presentation (where presentation is required 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, levywhichever is later, impost except to the extent that the beneficial owner or chargeHolder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period;
(vi) any withholding or deduction in respect of any Taxes where such withholding or deduction is imposed or levied on a payment to an individual and is 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 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) 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 by presenting the Securities another paying agent in a Member State of the European Union; or
(viii) any combination of items (i) through (vii) above. Such Additional Amounts will also not be paid with respect to the Securities to a Holder who is a fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of the payment under or with respect to the Securities, 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 who would not have been entitled to the Additional Amounts had it been the Holder of the Securities.
(b) The Company, the relevant Subsidiary Guarantor or the relevant Successor, as the case may be, will (i) make such withholding or deduction as is required by applicable law and (ii) remit the full amount withheld or deducted to the relevant taxing authority in accordance with applicable law.
(c) At least 30 calendar days prior to each date on which any payment under or with respect to the 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 Officers’ Certificate stating that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date (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 Securities is due and payable, in which 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 this Indenture stating that such Additional Amounts will be payable and describing the obligation to pay such amounts.
(d) 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 Guarantor or such 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 or such Successor. If, notwithstanding the efforts of the Company, 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.
(e) 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 any 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 Securities other than the initial resale by the underwriters named in the Prospectus).
(f) Whenever this Indenture or the Securities refers to, in any context, the payment of principal, premium, if any, interest or any other amount payable under or with respect to any Security or with respect to any Guarantee, such reference includes the payment of Additional Amounts, if applicable.
Appears in 1 contract
Samples: Indenture (Mayfield Processing LLC)
Payment of Additional Amounts. (a) The Company and the Subsidiary Guarantors shall pay to holders of the Notes all additional amounts (“Additional Amounts”) that may be necessary so that every net payment of interest (including any amounts due premium paid upon redemption of the Notes) or principal to the Holder shall not be less than the amount provided for in the Notes. The term “net payment” means the amount the Company or its paying agent pay the Holder after deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to the Securities that payment by a Mexican taxing authority (“Taxing Authority”).
(b) The Company and the Subsidiary Guarantors will shall not pay additional amounts to any amounts due with respect to Holder for or solely on account of any of the Securities Guarantees without deduction or withholding for following:
(1) any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges (imposed solely because at any time there is or was a “withholding tax”) imposed by connection between the Holder or for the account beneficial owner of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Note and Mexico (or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”territory or possession thereof), unless including such withholding Holder or deduction beneficial owner (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, or branch subject to taxation therein, or (iii) being or having been present or engaged in a trade or business therein (other than the mere receipt of a payment or the ownership or holding of a Note),
(2) any estate, inheritance, gift, transfer or similar tax, assessment or other governmental charge imposed with respect to the Notes,
(3) any taxes, duties, assessments or other governmental charges imposed solely because the Holder or any other person fails to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with Mexico (or any political subdivision or territory or possession thereof) of the Holder or any beneficial owner of the Note, if compliance is required by law. If statute, regulation, officially published administrative practice of the taxing jurisdiction or by an applicable income tax treaty, which is in effect to which Mexico is a party, as a precondition to exemption from, or 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 will be required to provide such information and identification;
(4) any tax, duty, assessment or other governmental charge payable otherwise than by deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), from payments on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:Notes,
(15) if any withholding would not be payable taxes, duties, assessments or due but other governmental charges with respect to such Note presented for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment more than 30 days after the date such on which the payment became due and payable or was the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever occurs later, except to the extent that the holders of such Note would have been entitled to such additional amounts on presenting such Note for payment on any date during such 30 day period, and
(6) any payment on the Note to a Holder that is later;a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the additional amounts had the beneficiary, settlor, member or beneficial owner been the holder of the Note.
(1) The limitations on the Company’s and Subsidiary Guarantors’ obligations to pay Additional Amounts set forth in Section 3.21(b)(3) above shall not apply:
(i) if the provision of information, documentation or other evidence described in such Section 3.21(b)(3) would be materially 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. and Mexican law, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation (including proposed regulations) and administrative practice.
(ii) unless (A) the provision of the information, documentation or other evidence described in such Section 3.21(b)(3) becomes expressly required by the applicable Mexican statutes, regulations and administrative practices, and (B) the Company otherwise would not meet the requirements for application of the reduced Mexican tax rate.
(iii) if the provisions of Article 195, Section II, subsection a) of the Mexican Income Tax Law (or a substitute equivalent provision) would apply.
(2) if In addition, such Section 3.21(b)(3) does not require, and shall not be construed to require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax tax.
(d) Upon request, the Company and the Subsidiary Guarantors shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Mexican taxes in respect of which we have paid any Additional Amount. The Company shall make copies of such documentation available to the Holders of the Notes or the Paying Agent upon request.
(e) 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 attributable 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 estatesuch claim for a refund or credit of such excess to the Company. However, inheritanceby making such assignment, giftthe Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(f) In the event of any merger or other transaction described and permitted under Section 4.1, salesthen all references to Mexico, transferMexican law or regulations, exciseand Mexican taxing authorities under this Section 3.21 (other than Section 3.21(c)(1)) and under Article V and Section 5 of Exhibit A shall be deemed to also include the United States and any political subdivision therein or thereof, personal property United States law or similar taxregulations, levyand any taxing authority of the United States or any political subdivision therein or thereof, impost or charge;respectively.
Appears in 1 contract
Samples: Indenture (Homex Development Corp.)
Payment of Additional Amounts. (a) The Company is required by Mexican law to deduct and to withhold 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 Holder such additional amounts due with respect (“Additional Amounts”) on those payments to the Securities and extent described in this Section 3.21. To the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) extent Taxes imposed by or 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 Mexico or any political subdivision or taxing authority of such jurisdiction thereof or therein (“Mexican Taxes”) are required to be withheld or deducted from any payments under the Notes or the Note Guarantees, the Company or the relevant Restricted Subsidiaries (the “Taxing Jurisdiction”), unless Payor,” as applicable) shall pay such Additional Amounts as may be necessary to ensure that the net amount actually received by such Holder after any such withholding or deduction of Mexican Taxes is required by law. If such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, equal to the fullest extent allowed by law amount that the Holder would have received had no such withholding or deduction been required.
(subject b) The Payor shall not pay Additional Amounts to compliance by the holder any Holder for or on account of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instancesfollowing:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because of the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with the Taxing Jurisdiction between such Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note) or ownership enforcement of rights in respect 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 Notes;
(ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property transfer or similar tax, levyassessment or other governmental charge imposed with respect to the Notes;
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, impost identification, information, documentation or chargeother similar reporting requirement if (A) such compliance is required by law, regulation, or administrative practice, or an applicable treaty in effect as a precondition to exemption from, or reduction in the rate of, deduction or withholding of any Taxes for which the 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 requirement;
(iv) 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 more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period; and
(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder.
(c) Upon request, the Payor shall provide the Trustee with documentation reasonably satisfactory to the 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 the execution, delivery or registration of the Notes, the Note Guarantees or any other document or instrument referred to therein (other than a transfer of the Notes), or the receipt of any payments 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 or any other such document or instrument following the occurrence of any Event of Default with respect to the Notes.
(h) The foregoing paragraphs in this Section 3.21 shall survive any termination, defeasance or discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to a Payor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Iusacell S a De C V)
Payment of Additional Amounts. The Company will make all payments of principal and premium, if any, interest and any other amounts on, or in respect of, the Notes without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of a Taxing Jurisdiction, unless such taxes, fees, duties, assessments or governmental charges are required to be withheld or deducted by (x) the laws (or any regulations or rulings promulgated thereunder) of the Taxing Jurisdiction or (y) 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 or tribunal of competent jurisdiction or by a taxing authority in a Taxing Jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Company will, subject to certain limitations and exceptions described below, pay to the Holder of any Notes such Additional Amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after the withholding or deduction (including any such withholding or deduction from such Additional Amounts), will not be less than the amount provided for in such Notes or in this Indenture to be then due and payable. The Company will not be required to pay any Additional Amounts for or on account of:
(a) The any tax, fee, duty, assessment or governmental charge of whatever nature that would not have been imposed but for the fact that such Holder (i) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant Taxing Jurisdiction or any political subdivision thereof or otherwise had some connection with the relevant Taxing Jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Note, (ii) presented, where presentation is required, such Note for payment in the relevant Taxing Jurisdiction or any political subdivision thereof, unless such Note could not have been presented for payment elsewhere, or (iii) presented, where presentation is required, such Note for payment more than 30 days after the date on which the payment in respect of such Note became due and payable or provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amounts if it had presented such Note for payment on any day within that 30-day period;
(b) any 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 imposed or withheld by reason of the failure by the Holder or beneficial owner of such Note to comply with any reasonable request by the Company shall addressed to the Holder within 90 days of such request (i) to provide information concerning the nationality, residence or identity of the Holder or the beneficial owner or (ii) to make any declaration or other similar claim or satisfy any information or reporting requirement, which is required or imposed by statute, treaty, regulation or administrative practice of the relevant Taxing Jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(d) any withholding or deduction imposed on or in respect of any Note 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 or intergovernmental agreements in connection therewith, and any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(e) any combination of items (a), (b), (c) and (d) above. In addition, the Company will not pay any amounts due Additional Amounts with respect to any payment of principal of, or premium, if any, interest or any other amounts on, any such Note to any Holder who is a fiduciary or partnership or other than the Securities sole beneficial owner of such Note if such payment would be required by the laws of the relevant Taxing Jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner to the extent such beneficiary, partner or settlor would not have been entitled to such Additional Amounts had it been the Holder of the Note. In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees (i) to provide to the Trustee and the Guarantors Paying Agent sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so the Trustee and the Paying Agent can determine whether it has tax-related obligations under Applicable Law and (ii) that the Trustee and the Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Trustee and the Paying Agent shall not have any liability. The Company will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding stamp, court or documentary taxes or other similar taxes, leviescharges or levies that arise in any Taxing Jurisdiction from the execution, imposts and charges (a “withholding tax”) imposed by delivery, enforcement or for the account registration of the Cayman IslandsNotes, Switzerland this Indenture, or any other document or instrument required in relation thereof, and the Company will agree to indemnify the Holders for any such taxes paid by such Holders. The obligations described in this Section 5.10 will survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which either any successor Person to the Company or a Guarantor is a resident for tax purposes organized or any political subdivision or taxing authority or agency thereof or therein. Prior to the date on which the payment of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredAdditional Amounts are due, the Company or such Guarantor, as applicable, will, will deliver to the fullest extent allowed by law Trustee an Officer’s Certificate stating that such Additional Amounts will be payable on the applicable Payment Date and setting forth the amounts so payable, and will set forth such other information necessary to enable the Trustee (subject or applicable Paying Agent) to compliance by pay such Additional Amounts to Holders on the holder Payment Date. Any such Officer’s Certificate will be delivered at least two Business Days in advance of when the payments in question are required to be made (unless a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) in respect shorter period 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 amounts paid time is acceptable to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if anyin its reasonable discretion), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company A. Any and all payments by the Corporation hereunder to any Holder and each "qualified assignee" thereof shall pay any amounts due with respect to the Securities be made free and the Guarantors will pay any amounts due with respect to the Securities Guarantees clear of and without deduction or withholding for any and all present and or future withholding taxes, levies, imposts imposts, deductions, charges or withholdings, and charges all liabilities with respect thereto (a “withholding tax”all such taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes") imposed by or 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”), unless such withholding or deduction is Taxes are required by lawlaw or the administration thereof to be deducted or withheld. If such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed Corporation shall be required by law (subject or the administration thereof to compliance by the holder of a Security with deduct or withhold any relevant administrative requirements), pay additional amounts (the “Additional Amounts”) Taxes from or in respect of principal amount, redemption price and interest any sum payable under the Series A-2 Shares (if any), in accordance with i) the terms of the Securities and this Indenture, sum payable shall be increased as may be necessary so that the net after making all required deductions or withholdings (including deductions or withholdings applicable to additional amounts paid under this Paragraph 5.3) such Holder receives an amount equal to the holder or the Trustee after sum it would have received if no such deduction or withholding will equal had been made; (ii) the principal amount, redemption price Corporation shall make such deductions or withholdings; and interest (if any), on iii) the SecuritiesCorporation shall forthwith pay the full amount deducted or withheld to the relevant taxation or other authority in accordance with applicable law. However, neither A "qualified assignee" of a Holder is a person that is organized under the Company nor laws of (I) the United States or (II) any Guarantor will pay jurisdiction other than the United States or any Additional Amounts in political subdivision thereof and that (y) represents and warrants to the following instances:
(1) if any withholding Corporation that payments of the Corporation to such assignee under applicable law would not be payable subject to any Taxes and (z) from time to time, as and when requested by the Corporation, executes and delivers to the Corporation and the Internal Revenue Service forms, and provides the Corporation with any information, necessary to establish such assignee's continued exemption from Taxes under applicable law.
B. The Corporation shall forthwith pay any present or due but future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (all such taxes, charges and levies hereinafter referred to as "Other Taxes") which arise from any payment made under this Certificate of Designation or the transactions contemplated hereby.
C. The Corporation shall indemnify each Holder, or qualified assignee, for the fact that full amount of Taxes or Other Taxes (iincluding, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Paragraph 5.3) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident ofpaid by each Holder, or engaging in business qualified assignee, and any liability (including penalties, interest and expenses) arising therefrom or maintaining a permanent establishment with respect thereto, whether or being physically present in, not such Taxes or Other Taxes were correctly or legally asserted. Payment under this indemnification shall be made within 30 days from the Taxing Jurisdiction date such Holder or otherwise having some present assignee makes written demand therefor. A certificate as to the amount of such Taxes or former connection with Other Taxes submitted to the Taxing Jurisdiction other than the holding Corporation by such Holder or ownership assignee shall be conclusive evidence of the Security or amount due from 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 Corporation to such party.
D. Within 30 days after the date such of any payment became due of Taxes, the Corporation will furnish to each Holder the original or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;a certified copy of a receipt evidencing payment thereof.
Appears in 1 contract
Samples: Bridge Securities Purchase Agreement (Visual Edge Systems Inc)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees shall be made without withholding or deduction or withholding for any and all present and or future withholding taxes, leviesduties, imposts and assessments or other governmental charges (a “withholding tax”) imposed of whatever nature imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland Brazil or any Successor Jurisdiction or any authority therein or thereof having power to tax (“Foreign Taxes”), except to the extent that such Foreign Taxes are required by the Cayman Islands, Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company, the Guarantor or their successors , as the case may be, shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as are necessary to ensure that the net amounts received by the Holders of Securities after such withholding or deduction equals the respective amounts of principal, premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other jurisdiction governmental charges in which either respect of such Security by reason of (A) a connection between the Company Holder and the Cayman Islands, 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 the Cayman Islands, Brazil or a Guarantor Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if compliance is a resident for tax purposes required by the Cayman Islands, Brazil or such Successor Jurisdiction, or any political subdivision or taxing authority of such jurisdiction (thereof or therein having power to tax as a precondition to exemption from, or reduction in the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredrate 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 such Guarantor, as applicable, will, to the fullest extent allowed by law other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to any in respect of estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, impost assessment or chargeother governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) in respect of any taxes, duties, assessments or other governmental charges imposed under Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended as of the issue date (or any amended or successor version that is substantively comparable) and any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the U.S. Internal Revenue Code, any intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any law, regulation or practice adopted pursuant to any such intergovernmental agreement; or
(vi) in respect of any combination of the above.
Appears in 1 contract
Samples: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Issuer, UtiliCorp, and any amounts due other Guarantor under or with respect to the Securities and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, duties, levies, imposts and imposts, assessments or governmental charges of whatever nature (a “withholding tax”) "TAXES"), imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland any laws or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes regulations of Canada or any political subdivision or taxing authority of such jurisdiction thereof or therein having the power to tax (the “Taxing Jurisdiction”a "TAXING AUTHORITY"), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredthe Issuer, the Company UtiliCorp or such Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Issuer, UtiliCorp or such 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 fullest extent allowed by law (subject to compliance by Securities or the holder of a Security with any relevant administrative requirements)Guarantees, as the case may be, the Issuer, UtiliCorp or such Guarantor, as the case may be, will pay such additional amounts (the “Additional Amounts”"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 amounts paid to the holder or the Trustee amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; PROVIDED that no Additional Amounts in the following instances:
(1) if any withholding would not will be payable or due but for with respect to a payment made to a Holder of Securities to the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;extent: 62
Appears in 1 contract
Samples: Indenture (Utilicorp United Inc)
Payment of Additional Amounts. (a) The Company shall pay make all payments on the Series A Preference Shares free and clear of and without withholding or deduction at source for, or on account of, any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesfees, imposts and duties, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 “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 (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 any Relevant Taxing Jurisdiction). If a withholding or deduction at source is required by law. If such deduction or withholding is at any time required, the Company or such Guarantorshall, as applicablesubject to certain limitations and exceptions described below, will, pay to the fullest extent allowed by law (subject to compliance by holders of the holder of a Security with any relevant administrative requirements), pay Series A Preference Shares such additional amounts (the “Additional Amountsadditional amounts”) in respect of principal amount, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as dividends as may be necessary so that the every net amounts paid payment, after such withholding or deduction (including any such withholding or deduction from such additional amounts), shall be equal to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither amounts the Company nor any Guarantor will would otherwise have been required to pay had no such withholding or deduction been required.
(b) The Company shall not be required to pay any Additional Amounts in the following instancesadditional amounts for or on account of:
(1i) if any withholding tax, fee, duty, assessment or governmental charge of whatever nature that would not be payable or due have been imposed but for the fact that (i) the such holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the Relevant Taxing Jurisdiction or any political subdivision thereof or otherwise having had some present or former connection with the Relevant Taxing Jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or the enforcement receipt of the Security payment under, such Series A Preference Shares or any Series A Preference Shares presented for payment (ii) where presentation is required, the Security was presented required for payment) more than 30 days after the Relevant Date (except to the extent that the holder would have been entitled to such amounts if it had presented such shares for payment on any day within such 30 day period). The “Relevant Date” means, in respect of any payment, the date on which such payment became first becomes due and payable, but if the full amount of the moneys payable has not been received by the dividend disbursing agent on or was provided forprior to such due date, whichever is laterit means the first date on which the full amount of such moneys having been so received and being available for payment to holders and notice to that effect shall have been duly given to the holders of the Series A Preference Shares;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay If, as a result of any amounts due with respect change in applicable law, regulation or treaty, or in any official application or interpretation thereof after the date of this Agreement or, if later, the date a Bank becomes a Bank hereunder, the Borrower is required by law or regulation to the Securities and the Guarantors will pay make any amounts due with respect to the Securities Guarantees without deduction deduction, withholding or backup withholding for of any and all present and future withholding taxes, levies, imposts imposts, duties, fees, liabilities or similar charges of the United States of America, any possession or territory of the United States of America (including the Commonwealth of Puerto Rico) or any area subject to the jurisdiction of the United States of America ("U.S. Taxes") from any payments to a Bank in respect of Loans or Reimbursement Obligations then or thereafter outstanding, or other amounts owing hereunder, the amount payable by the Borrower will be increased to the amount which, after deduction from such increased amount of all U.S. Taxes required to be withheld or deducted therefrom, will yield the amount required under this Agreement to be payable with respect thereto; provided that the Borrower shall not be required to pay any additional amount pursuant to this subsection (c) to any Bank that (i) is not, on the date this Agreement is executed by such Bank or, if later, the date such Bank became a Bank hereunder, either (x) entitled to submit Form W-8BEN relating to such Bank and charges entitling it to a complete exemption from withholding on all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans and Reimbursement Obligations, Form W-8ECI relating to all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans and Reimbursement Obligations or Form W-8 relating to such Bank and entitling it to a complete exemption from withholding on all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans and Reimbursement Obligations (or, in any such case, such successor forms as shall be adopted from time to time by the Internal Revenue Service), or (y) a “withholding tax”U.S. person (as such term is defined in Section 7701(a)(30) imposed by of the Code), or (ii) has failed to submit any form or certificate that it was required to file pursuant to subsection (a) of this Section 12.18 and entitled to file under applicable law, or (iii) is no longer entitled to submit Form W-8BEN, Form W-8ECI or Form W-8 as a result of any change in circumstances other than a change in applicable law, regulation or treaty or in any official application or interpretation thereof. If the Borrower is required to pay additional amounts to or for the account of any Bank pursuant to the Cayman Islandssubsection (c), Switzerland then such Bank will agree to use reasonable efforts to change the jurisdiction of its applicable lending office so as to eliminate or reduce any other jurisdiction such additional payment which may thereafter accrue if such change, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority judgment of such jurisdiction (Bank, is not otherwise disadvantageous to such Bank. Within 30 days after the “Taxing Jurisdiction”Borrower's payment of any such U.S. Taxes, the Borrower shall deliver to the Agent, for the account of the relevant Bank(s), unless originals or certified copies of official tax receipts evidencing such withholding or deduction is required by lawpayment. The obligations of the Borrower under this subsection (c) shall survive the payment in full of the Loans and Reimbursement Obligations and the termination of the Commitments. If any Bank or the Agent determines it has received or been granted a credit against or relief or remission for, or repayment of, any taxes paid or payable by it because of any U.S. Taxes paid by the Borrower and evidenced by such a tax receipt, such Bank or Agent shall, to the extent it can do so without prejudice to the retention of the amount of such credit, relief, remission or repayment, pay to the Borrower such amount as such Bank or Agent determines is attributable to such deduction or withholding is at any time required, the Company and which will leave such Bank or Agent (after such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”payment) in respect of principal amount, redemption price and interest (no better or worse position than it would have been in if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid Borrower had not been required to the holder or the Trustee after make such deduction or withholding will equal withholding. Nothing in this Agreement shall interfere with the principal amount, redemption price right of each Bank and interest (if any), on the Securities. However, neither Agent to arrange its tax affairs in whatever manner it thinks fit nor oblige any Bank or the Company nor Agent to disclose any Guarantor will pay information relating to its tax affairs or any Additional Amounts computations in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;taxes.
Appears in 1 contract
Samples: Secured Credit Agreement (Maverick Tube Corporation)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman IslandsUnited States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or any other jurisdiction or, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms ownership or holding of the Securities and this Indenture, or the enforcement of the Security or Notes),
(ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge, impost and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or charge;withholding from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the 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 Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of (b)Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) The Issuer will ensure that it maintains a paying agent, in a European Union member state, that will not be obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(h) 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 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 Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer under or with respect to the Securities Notes shall be made free and the Guarantors will pay clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) Taxes imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland or any other Taxing Authority in any jurisdiction in which either the Company Issuer is organized or a Guarantor is a otherwise resident for tax purposes or any political subdivision jurisdiction from or taxing authority of such jurisdiction through which payment is made (the “each a "Relevant Taxing Jurisdiction”"), unless the Issuer is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. If the Issuer is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction, from any payment made under or with respect to the Notes, the Issuer shall make such withholding or deduction is required by law. If and shall pay such deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction or withholding will shall equal the principal amountamount the Holder would have received if such Taxes had not been withheld or deducted; provided, redemption price and interest (if any)however, on the Securities. However, neither the Company nor any Guarantor will pay any that no Additional Amounts in the following instancesshall be payable with respect to any Tax that would not have been imposed, payable or due:
(1) if with respect to a Holder with which the Issuer or any withholding would Guarantor does not be payable or due deal on an arm's length basis within the meaning of the Income Tax Act (Canada) on the date of such payment;
(2) but for the fact that existence of any present or former connection between the Holder and the Relevant Taxing Jurisdiction (i) the holder of including being a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national citizen or resident or national of, or engaging in carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction Jurisdiction) other than the mere holding or ownership of the Security Notes or enforcement of rights thereunder or the collection receipt of principal amountpayments in respect thereof;
(3) but for the failure to satisfy any certification, redemption priceidentification or other reporting requirements whether imposed by statute, repurchase price and interest treaty, regulation or administrative practice; or
(4) if any), in accordance with the terms presentation of the Securities and this Indenture, or the enforcement of the Security or Notes (ii) where presentation is required, the Security was presented more than ) for payment has not occurred within 30 days after the date such payment became was due and payable or was duly provided for, whichever is later;
. In addition, Additional Amounts shall not be payable if the beneficial owner of, or person ultimately entitled to obtain an interest in, such Notes had been the Holder of the Notes and such beneficial owner would not be entitled to the payment of Additional Amounts by reason of clause (1), (2), (3) or (4) above. In addition, Additional Amounts shall not be payable with respect to any Tax which is payable or assessed on a Holder under the laws of the jurisdiction(s) in which: (1) that Holder is incorporated, organized, resident or has a permanent establishment for tax purposes, or (2) that Holder's office is located in respect of amounts received or receivable in that jurisdiction, if any withholding tax that Tax is attributable imposed on or calculated by reference to any estatethe income received or receivable by that Holder. Upon request, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;the Issuer shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Additional Amounts.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Payment of Additional Amounts. (a) The All payments made by ----------------------------- the Company shall pay any amounts due and the Guarantor under or with respect to the Securities and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or on behalf of any Taxing Authority ("Taxes"), unless the 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 Securities Guarantees without deduction or withholding for any and all present and future withholding taxesthe Guarantees, levies, imposts and charges (a “withholding tax”) imposed by or for as 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”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company or such the Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee amount received by each Holder of Securities (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Securities to the following instancesextent:
(1i) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Securities or the collection exercise or enforcement of principal amountrights under such Securities, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and Guarantees or 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Taxes imposed with respect to such Securities, except as otherwise provided herein;
(iii) that any such Taxes would not have been so imposed but for the presentation of such Securities or Guarantees (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 Additional Amounts had the Securities or Guarantees been presented for payment on any date during such 30-day period; or
(iv) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemp tion, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company or the Guarantor shall apply this subclause (iv), the Company or the Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The Company or the Guarantor, as applicable, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so de ducted or withheld to the relevant Taxing Authority in accordance with all applicable laws. The Company or the Guarantor, as applicable, will use its reasonable 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 Company or the Guarantor, as the case may be, will, upon request, make available to the Holders of the Securities, within 60 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, notwith standing 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 Securities 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 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 the Trustee to pay such Additional Amounts to Holders of Securities on the payment date. The foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the 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. 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, Bermuda 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. Whenever in this Indenture or the Securities there is mentioned, in any context, the payment of principal, redemption price 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. 10.7.1 All payments of principal, premium and interest in respect of the Securities shall be made without withholding or deduction for any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil or any Successor Jurisdiction or any authority therein or thereof having power to tax (a) The "Foreign Taxes"), except to the extent that such Foreign Taxes are required by Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company shall pay such additional amounts ("Additional Amounts") as will result in receipt by the Holders of Securities on the respective due dates of such amounts as would have been received by them had no such withholding or deduction (including for any amounts due Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges which would not have been imposed but for (A) a connection between the Securities Holder and Brazil other than the mere holding of such Security and the Guarantors will pay any amounts due receipt of payments with respect to such Security or (B) failure by the Securities Guarantees without deduction Holder to comply with any certification, identification or withholding for any and all present and future withholding taxesother reporting requirement concerning the nationality, leviesresidence, imposts and charges (a “withholding tax”) imposed by identity or for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company connection with Brazil or a Guarantor Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if compliance is a resident for tax purposes required by such Successor Jurisdiction, or any political subdivision or taxing authority of such jurisdiction (thereof or therein having power to tax as a precondition to exemption from, or reduction in the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredrate 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 such Guarantor, as applicable, will, to the fullest extent allowed by law other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to any in respect of estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security; --------------------------------------------------------------------------------
(iv) in respect of any tax, impost assessment or chargeother governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company in respect of claims made against the Company;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vi) in respect of any combination of the above.
Appears in 1 contract
Samples: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. (a) The Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee shall pay to Holders of the Notes such additional amounts (“Additional Amounts”) as may be necessary so that every net payment of interest (including any amounts due premium paid upon redemption of the Notes and any discount deemed interest under Mexican law) or principal to the Holders shall not be less than the amount provided for in the Notes. The term, “net payment,” means the amount that the Company, any Restricted Subsidiary that provides a Subsidiary Guarantee or a Paying Agent pays any Holder after deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed that payment by or 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 Mexico or any political subdivision or taxing authority of such jurisdiction any nature thereof or therein (the “Taxing JurisdictionAuthority”).
(b) The Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee, unless such withholding shall not pay Additional Amounts to any Holder for or deduction solely on account of any of the following:
(i) any Taxes imposed solely because at any time there is or was a connection between the Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, gift or similar tax, assessment or other governmental charge imposed with respect to the Notes;
(iii) 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 Mexico, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law. If , regulation thereunder or by an applicable income tax treaty to which Mexico is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification;
(iv) any Taxes payable otherwise than by deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), from payments on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:Notes;
(1v) if any withholding would not be payable or due but Taxes with respect to a Note presented for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment more than 30 days after the date such on which the payment became due and payable or was 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 Holder of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
(2vi) any withholding or deduction imposed on a payment to or for the benefit of an individual that is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive on the taxation of savings implementing the conclusion of the ECOFIN council meeting on November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(vii) any withholding or deduction that is imposed on a Note presented for payment by or on behalf of a beneficial owner who would have been able to avoid the withholding or deduction by presenting the Note to another paying agent in a Member State of the European Union; and
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The limitations on the obligations of the Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee to pay Additional Amounts set forth in Section 3.19(b)(iii) shall not apply:
(i) if the provision of information, documentation or other evidence described in such Section 3.19(b)(iii) would be materially more onerous, in form, in procedure or in the 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 (including the United States-Mexico income tax treaty), regulations and administrative practice; or
(ii) if the provisions of Article 195, Section II of the Mexican Income Tax Law (Ley de Impuestos Sobre la Rentd) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such Section 3.19(b)(iii) is expressly required by the applicable Mexican laws and regulations in order to apply such Article 195, Section II (or substitute or equivalent provision), (B) the Company or any Restricted Subsidiary cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Company or any Restricted Subsidiary otherwise would meet the requirements for application of the applicable Mexican laws and regulations. In addition, such Section 3.19(b)(iii) does not require, and shall not be construed to require, that any Person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Mexican Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax is attributable tax.
(d) Promptly upon request, the Company or any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Mexican taxes in respect of which the Company or such Restricted Subsidiary has paid any estateAdditional Amount. The Company shall make copies of such documentation available to the Holders of the Notes or the Paying Agent upon request.
(e) In the event of any merger or other transaction described and permitted under Section 4.1, inheritancethen all references to Mexico, giftMexican law or regulations, salesand Mexican political subdivisions or taxing authorities under this Section 3.19 and under Article V and Section 5 of Exhibit A shall be deemed to also include the United States and any political subdivision therein or thereof, transferU.S. law or regulations, exciseand any taxing authority of the United States or any political subdivision therein or thereof, personal property or similar tax, levy, impost or charge;respectively.
Appears in 1 contract
Samples: Indenture (Alestra)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman IslandsUnited States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or any other jurisdiction or, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms ownership or holding of the Securities and this Indenture, or the enforcement of the Security or Notes),
(ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge, impost and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or charge;withholding from payments on the Notes,
(v) [Reserved],
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the 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 Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(c) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the 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 Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(c) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax- exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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. 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 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 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 Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. 10.7.1 All payments in respect of the Securities shall be made without withholding or deduction for any present or future taxes, duties, assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil or any Successor Jurisdiction or any authority therein or thereof having power to tax (a) The “Foreign Taxes”), except to the extent that such Foreign Taxes are required by Brazil, such Successor Jurisdiction or any such authority to be withheld or deducted. In the event of any withholding or deduction for any Foreign Taxes, the Company shall make such deduction or withholding, make payment of the amount so withheld to the appropriate governmental authority and pay such additional amounts (“Additional Amounts”) as are necessary to ensure that the net amounts received by the Holders of Securities after such withholding or deduction equals the respective amounts of principal, premium and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any amounts due Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (A) a connection between the Securities Holder and Brazil other than the mere holding of such Security and the Guarantors will pay any amounts due receipt of payments with respect to such Security or (B) failure by the Securities Guarantees without deduction Holder to comply with any certification, identification or withholding for any and all present and future withholding taxesother reporting requirement concerning the nationality, leviesresidence, imposts and charges (a “withholding tax”) imposed by identity or for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company connection with Brazil or a Guarantor Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if compliance is a resident for tax purposes required by such Successor Jurisdiction, or any political subdivision or taxing authority of such jurisdiction (thereof or therein having power to tax as a precondition to exemption from, or reduction in the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredrate 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 such Guarantor, as applicable, will, to the fullest extent allowed by law other requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was 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 Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(2iii) if any withholding tax is attributable to any in respect of estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyassessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, impost assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company in respect of claims made against the Company;
(v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vi) in respect of any combination of 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 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 materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (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 (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 applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or any interest on such Securities shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge;. If any such deduction or withholding shall be required by Brazil or any Successor Jurisdiction or any authority therein having power to tax, then such certificate shall specify, by country, the 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 Trustee or such Paying Agent Additional Amounts, if any, required by this Section. The Company agrees to 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 or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section, the obligation of the Company to so indemnify being joint and several.
10.7.2 The Company shall pay all stamp, 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 foregoing, with respect to the 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 outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the 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 Securities, 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 Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium or interest in respect of any Security shall be deemed to mean and include all Additional Amounts, if any, payable in respect of such principal, premium or interest, 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 Additional Amounts 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 Repurchase Price payable in respect of 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 Xxxxxxxxxx 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) The Company shall pay any amounts due with make all payments in respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the account of the Cayman IslandsPEPS Units (including any dividend payments or other distributions payable on the Preferred Shares and Contract Adjustment Payments on the Purchase Contracts that form such PEPS Units) without withholding or deduction at source for, Switzerland or on account of, any other jurisdiction in which either the Company present or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”)future Taxes, unless such Taxes are required to be withheld or deducted by (i) the laws (or any regulations or rulings promulgated thereunder) of a Taxing Jurisdiction or any taxing authority therein 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).
(b) If a withholding or deduction by the Company is required by law. If such deduction or withholding is at the law of any time requiredTaxing Jurisdiction, the Company or such Guarantorshall, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirementscertain limitations and exceptions described in Section 5.13(c), pay to the Holder of any such PEPS Unit 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 every net payment made to such Holder in respect thereof, after the net amounts paid withholding or deduction, will not be less than the amount provided for in this Agreement, the Purchase Contract and Certificate of Designation to be then due and payable.
(c) Notwithstanding the holder or the Trustee after such deduction or withholding will equal the principal amountforegoing, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will shall not be required to pay any Additional Amounts in the following instancesunder any PEPS Unit for or on account of:
(1i) if any withholding Taxes which would not be payable or due have been imposed but for the fact that such Holder (ia) the holder of was a Security (resident, domiciliary or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging engaged in business or maintaining maintained a permanent establishment or being was physically present in, the relevant Taxing Jurisdiction or otherwise having had some present or former connection with the Taxing Jurisdiction relevant taxing jurisdiction other than the holding or ownership by reason 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 Indenturemere ownership of, or receipt of payment under, such PEPS Unit, (b) presented such PEPS Unit for payment in the enforcement of the Security relevant Taxing Jurisdiction, unless such PEPS Unit could not have been presented for payment elsewhere, or (iic) where presentation is required, the Security was presented such PEPS Unit for payment more than 30 days after the date on which the payment in respect of such payment PEPS Unit became due and payable or was provided for, whichever is later, except to the extent that the Holder would have been entitled to such Additional Amounts if it had presented such PEPS Unit for payment on any day within that 30-day period;
(2ii) if any withholding tax is attributable to any estate, inheritance, gift, salessale, transfer, excise, personal property or similar taxTaxes;
(iii) any Taxes that are imposed or withheld by reason of the failure by the Holder or the beneficial owner of such PEPS Unit to comply with any reasonable request by the Company addressed to the Holder within 90 days of such request (a) to provide information concerning the nationality, levyresidence 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, impost which is required or charge;imposed by statute, treaty, regulation or administrative practice of the relevant Taxing Jurisdiction as a precondition to exemption from all or part of such Taxes; or
(iv) any combination of items (i), (ii) and (iii). In addition, the Company shall not pay Additional Amounts with respect to any payment of any amounts on any such PEPS Unit to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such PEPS Unit to the extent such payment would be required by the laws of the relevant Taxing Jurisdiction (or any relevant taxing authority therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had it been the Holder of the PEPS Unit.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company and the Subsidiary Guarantors shall pay to holders of the Notes all additional amounts (“Additional Amounts”) that may be necessary so that every net payment of interest (including any amounts due premium paid upon redemption of the Notes) or principal to the Holder shall not be less than the amount provided for in the Notes. The term “net payment” means the amount the Company or its Paying Agent pay the Holder after deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to the Securities that payment by a Mexican taxing authority (“Taxing Authority”).
(b) The Company and the Subsidiary Guarantors will shall not pay additional amounts to any amounts due with respect to Holder for or solely on account of any of the Securities Guarantees without deduction or withholding for following:
(1) any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges (imposed solely because at any time there is or was a “withholding tax”) imposed by connection between the Holder or for the account beneficial owner of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Note and Mexico (or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”territory or possession thereof), unless including such withholding Holder or deduction beneficial owner (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, or branch subject to taxation therein, or (iii) being or having been present or engaged in a trade or business therein (other than the mere receipt of a payment or the ownership or holding of a Note),
(2) any estate, inheritance, gift, transfer or similar tax, assessment or other governmental charge imposed with respect to the Notes,
(3) any taxes, duties, assessments or other governmental charges imposed solely because the Holder or any other person fails to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with Mexico (or any political subdivision or territory or possession thereof) of the Holder or any beneficial owner of the Note, if compliance is required by law. If statute, regulation, officially published administrative practice of the taxing jurisdiction or by an applicable income tax treaty, which is in effect to which Mexico is a party, as a precondition to exemption from, or 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 will be required to provide such information and identification;
(4) any tax, duty, assessment or other governmental charge payable otherwise than by deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), from payments on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:Notes,
(15) if any withholding would not be payable taxes, duties, assessments or due but other governmental charges with respect to such Note presented for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment more than 30 days after the date such on which the payment became due and payable or was the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever occurs later, except to the extent that the holders of such Note would have been entitled to such additional amounts on presenting such Note for payment on any date during such 30 day period, and
(6) any payment on the Note to a Holder that is later;a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the additional amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(1) The limitations on the Company’s and Subsidiary Guarantors’ obligations to pay Additional Amounts set forth in Section 3.21(b)(3) above shall not apply:
(i) if the provision of information, documentation or other evidence described in such Section 3.21(b)(3) would be materially 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. and Mexican law, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation (including proposed regulations) and administrative practice.
(ii) unless (A) the provision of the information, documentation or other evidence described in such Section 3.21(b)(3) becomes expressly required by the applicable Mexican statutes, regulations and administrative practices and the Company cannot obtain such information, documentation or other evidence on its own through reasonable diligence, and (B) the Company otherwise would not meet the requirements for application of the reduced Mexican tax rate; or
(iii) if the provisions of Article 195, Section II, subsection (a) of the Mexican Income Tax Law (or a substitute equivalent provision) are not complied with by the Company or any Subsidiary Guarantor, and a higher withholding tax would apply.
(2) if In addition, such Section 3.21(b)(3) does not require, and shall not be construed to require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax tax.
(d) Upon request, the Company and the Subsidiary Guarantors shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Mexican Taxes in respect of which we have paid any Additional Amount. The Company shall make copies of such documentation available to the Holders of the Notes or the Paying Agent upon request.
(e) 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 attributable 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 estatesuch claim for a refund or credit of such excess to the Company. However, inheritanceby making such assignment, giftthe Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(f) In the event of any merger or other transaction described and permitted under Section 4.1, salesthen all references to Mexico, transferMexican law or regulations, exciseand Mexican taxing authorities under this Section 3.21 (other than Section 3.21(c)(1)) and under Article V and Section 5 of Exhibit A shall be deemed to also include the United States and any political subdivision therein or thereof, personal property United States law or similar taxregulations, levyand any taxing authority of the United States or any political subdivision therein or thereof, impost or charge;respectively.
Appears in 1 contract
Samples: Indenture (Homex Development Corp.)
Payment of Additional Amounts. (a) The Company shall pay or, if applicable, each Guarantor will make payments of, or in respect of, principal, premium (if any) and interest on the Notes, or any amounts due with respect payment pursuant to the Securities and applicable Guarantee, as the Guarantors will pay case may be, without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxestax, levieslevy, imposts and charges impost or other similar governmental charge (a “withholding taxTaxes”) imposed imposed, assessed, levied or collected by or for the account of the Cayman IslandsUnited Kingdom, Switzerland The Netherlands (in the case of a payment by BATNF) or any other jurisdiction the United States (in which either the Company case of a payment by BATCAP or a Guarantor is a resident for tax purposes or RAI), including in each case any political subdivision thereof or taxing any authority of such jurisdiction thereof having the power to tax (the a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. If the Company or, if applicable, any such deduction Guarantor is required by a Relevant Taxing Jurisdiction to so withhold or withholding is at any time requireddeduct such Taxes, the Company or such Guarantoror, as if applicable, will, such Guarantor will pay to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay Holder such additional amounts (the “Additional Amounts”) as will result in the receipt by the Holder of such amounts as would have been received by it if no such withholding or deduction of Taxes had been required; provided, however, that amounts with respect of principal amount, redemption price and interest to any United States Tax shall be payable only to Holders that are not United States persons (if any), in accordance with within the terms meaning of the Securities Code) and this Indentureprovided further, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any such Guarantor will shall be required to pay any Additional Amounts in the following instancesfor or on account of:
(1a) if any withholding Taxes that would not be payable have been so imposed, assessed, levied or due collected but for the fact that (i) Holder or beneficial owner of the holder of a Security applicable Note or Guarantee (or a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the holderor possessor of a power over, such Holder, if the holder such Holder is an estate, trust, partnership or corporation), is ) being or having been a domiciliary, national or resident of, or engaging or having been engaged in business a trade or business, maintaining or having maintained a permanent establishment or being or having been physically present in, the a Relevant Taxing Jurisdiction or otherwise having or having had some present or former connection with the a Relevant Taxing Jurisdiction other than the holding or ownership of the Security of, or the collection of principal amountof, redemption price, repurchase price and interest premium (if any)) or interest on, in accordance with the terms of the Securities and this Indenture, a Note or the enforcement of the Security applicable Note or Guarantee, as the case may be;
(iib) any Taxes that would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is requiredrequired in order to receive payment, the Security applicable Note or Guarantee was presented more than 30 days after the date on which such payment became due and payable or was provided for, whichever is later, except to the extent that the Holder or beneficial owner thereof would have been entitled to Additional Amounts had the applicable Note or Guarantee been presented for payment on any day during such 30-day period;
(2c) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Taxes;
(d) any Taxes 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 the applicable Note or Guarantee to (i) provide any certification, identification, information, documents or other evidence concerning the nationality, residence or identity of the Holder or the beneficial owner or its connection with a Relevant Taxing Jurisdiction; or (ii) make any valid or timely declaration or claim or satisfy any other reporting, information or procedural requirements relating to such matters if, in either case, compliance is required by statute, regulation, relevant income tax treaty or administrative practice of a Relevant Taxing Jurisdiction as a condition to relief or exemption from such Taxes;
(f) any Taxes imposed by reason of the Holder or the beneficial owner of the applicable Note or Guarantee being or having been considered 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, as described in Section 881(c)(3)(A) of the Code (or any amended or successor provisions);
(g) any Taxes imposed on interest received by a 10-percent shareholder of the Company or any Guarantor within the meaning of Section 871(h)(3)(B) or Section 881(c)(3)(B) of the Code (or any amended or successor provisions);
(h) any backup withholding imposed pursuant to Section 3406 of the Code (or any amended or successor provisions);
(i) any Taxes imposed pursuant to Section 871(h)(6) or Section 881(c)(6) of the Code (or any amended or successor provisions);
(j) any Taxes imposed by reason of the Holder or the beneficial owner of the applicable Note or Guarantee being or having been a personal holding company, passive foreign investment company or controlled foreign corporation for U.S. Federal income tax purposes or a corporation that has accumulated earnings to avoid U.S. Federal income tax;
(k) any Taxes imposed or withheld pursuant to Sections 1471 through 1474 of the Code (or any amended or successor provisions), levyany U.S. Treasury regulations promulgated thereunder, impost any official interpretations thereof or chargeany agreements entered into in connection with the implementation thereof (“FATCA Withholding”);
(l) any Taxes imposed or to be withheld pursuat to the Dutch Withholding Tax Xxx 0000 (Wet bronbelasting 2021); or
(m) any combination of the Taxes described in clauses (a) through (l) above. In addition, Additional Amounts will not be paid with respect to any payment of the principal of, or premium (if any) or interest on, any Note or any payment pursuant to the applicable Guarantee to any Holder that is a fiduciary, a partnership, a limited liability company or any person other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary, 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 Holder of the applicable Note or Guarantee. Unless otherwise stated, references in any context to the payment of principal of, and premium (if any) or interest on, any Note, or any payment pursuant to a Guarantee, will be deemed to include 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. Any and all payments made by the Company to the Holders, under or with respect to the Securities, will be made free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including any interest or penalties with respect thereto) imposed or levied by or on behalf of Mexico or any political subdivision thereof or by any authority or agency therein or thereof having power to tax (hereinafter "Mexican Withholding Taxes"), unless the withholding or deduction of such Mexican Withholding Taxes is required by law on payments of interest and original issue discount or by the interpretation or administration thereof. In the event any Mexican Withholding taxes are required to be so withheld or deducted the Company will (a) pay such additional amounts ("Additional Amounts") as may be necessary so that after making all required deductions or withholdings imposed on payments of interest and original issue discount (including those applicable to additional sums payable under this provision) the net amount received by Holders or other beneficial owners of the Securities will not be less than the amounts as would have been received by them had no such withholding or deduction been required, (b) deduct or withhold such Mexican Withholding Taxes and (c) remit the full amount so deducted or withheld to the relevant taxing or other authority. Notwithstanding the foregoing, no such Additional Amounts shall be payable for or on account of (a) any Mexican Withholding Taxes which would not have been imposed or levied on a Holder or beneficial owner but for the existence of any present, future or former connection between the Holder or beneficial owner of the Securities and Mexico or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner (i) being or having been a citizen or resident of Mexico, (ii) maintaining or having maintained an office, permanent establishment or branch therein, or (iii) being or having been present or engaged in trade or business therein, except for a connection solely arising from the mere ownership of; or receipt of payment under, such Securities or the exercise of rights under such Securities or this Indenture (personally or through the Trustee); (b) any estate inheritance, gift or similar tax, assessment or other governmental charge; (c) any Mexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owner of such Securities to comply with any certification, identification, information, documentation, declaration or other reporting requirement which is required or imposed by a statute, treaty, regulation, general rule or administrative practice as a precondition to exemption from, or reduction in the rate of, the imposition, withholding or deduction of any Mexican Withholding Taxes; provided that at least 60 days prior to (i) the first payment date with respect to which the Company shall apply this clause (c) and (ii) in the event of a change in such certification, identification, information, documentation, declaration or other reporting requirements, the first payment date subsequent to such change, the Company shall have notified the Trustee, in writing, that the Holders or beneficial owners of the Securities will be required to provide such certification, identification, information or documentation, declaration or other reporting documentation; (d) any Mexican Withholding Taxes that are imposed or levied by reason of the failure by the Holder or beneficial owners of such Securities to timely comply (subject to the conditions set forth below) with a written request by or on behalf of the Company, to provide information, documentation or other evidence concerning the nationality, residence, identity, eligibility for benefits under a treaty for avoidance of double taxation to which Mexico is a party which is in effect, a present or former connection with Mexico or any political subdivision or territory or possession thereof or area subject to its jurisdiction, or of the Holder or beneficial owner of such Securities that is necessary from time to time to determine the appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable to such Holder or beneficial owner; provided that at least 60 days prior to the first payment date with respect to which the Company shall apply this clause (d), the Company shall have notified the Trustee, in writing, that such Holders or beneficial owners of the Securities will be required to provide such information, documentation or other evidence; (e) 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, except to the extent that the Holder or the beneficial owner of such Securities should have been entitled to Additional Amounts in respect of such Mexican Withholding Taxes on presenting such Securities for payment on any date during such 30-day period; or (f) any combination of items (a), (b), (c), (d) or (e) above. Notwithstanding the foregoing, the limitations on the Company's obligation to pay Additional Amounts Set forth in clauses (c) and (d) of the preceding paragraph shall not apply if the provision of the certification, identification, information, documentation, declaration or other evidence described in such clauses (c) and (d) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between United States and Mexican law, regulation or administrative practice) than comparable information or other applicable reporting requirements imposed or provided for under United States federal income tax law (including the United States-Mexico Income Tax Treaty), regulations (including proposed regulations) and administrative practice (such as IRS Forms 1001, W-8, W-8BEN and 6166). In addition, the limitations on the Compaxx'x xxxxxxxxxx xo pay Additional Amounts set forth in clauses (c) and (d) above of the preceding paragraph shall not apply if the withholding rate of 4.9% is applicable under the terms of paragraph (a) of Section II of Article 195 of the Mexican Income Tax Law, unless (i) the provision of the certification, identification, information, documentation, declaration or other evidence described in above referenced clauses (c) and (d) is expressly required by statute, regulation, general rules or administrative practice in order to apply paragraph (a) of Section II of Article 195 of the Mexican Income Tax Law, the Company cannot obtain such certification, identification, information, or satisfy any other reporting requirements on its own through reasonable diligence and the Company otherwise would meet the requirements for application of paragraph (a) of Section II of Article 195 of the Mexican Income Tax Law or (ii) in the case of a Holder or beneficial owner of Securities that is a pension or retirement fund or other tax-exempt organization, such Holder or beneficial owner would be subject to Mexican Withholding Taxes at a rate that is lower than the rate resulting from the application of paragraph (a) of Section II of Article 195 of the Mexican Income Tax Law if the information, documentation or other evidence required under above referenced clauses (c) and (d) were provided. In addition, clauses (c) and (d) of the preceding paragraph shall not be construed to require that a non-resident pension or retirement fund, a non-Mexican tax-exempt organization, a non-resident financial institution or any other Holder or beneficial owner of a Security obtain registration with the Ministry of Finance and Public Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican Withholding Taxes. Upon the Trustee's receipt of timely notification from the Company that the Holders or beneficial owners of securities will be required to provide information or documentation as described in clauses (c) and (d) above, the Trustee shall provide such notification to the Holders or beneficial owners, as the case may be. The Company will, upon written request, provide the Trustee, the Holders and the Paying Agent with a duly certified or authenticated copy of an original receipt of the payment of Mexican Withholding Taxes which the Company has withheld or deducted in respect of any payments made under or with respect to the Securities. The Trustee shall, for a period of five years following the due date for each payment, maintain in its files each such certified copy received from the Company. If the Company is obligated to pay Additional Amounts with respect to any payment under or with respect to the Securities (other than Additional Amounts payable on the date of this Indenture), the Company will, upon written request, deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts are payable and the amounts so payable. The Company shall pay any amounts due stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”thereto) imposed or levied by or 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 Mexico (or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding thereof 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”therein) in respect of principal amountthe creation, redemption price issue and interest (if any), in accordance with the terms offering of the Securities. Except as specifically provided in the Securities and or this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would shall not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection required to make any payment with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable respect to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levyduty, impost assessment or charge;other governmental charge of whatever nature imposed or levied by any government or any political subdivision or taxing authority thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. (a) The 10.8.1 All payments by the Company shall pay any amounts due with in respect to of the Securities shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of, any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts assessments, fees or other governmental charges of whatever nature (and charges (a “withholding tax”any fines, penalties or interest related thereto) imposed or levied by or for the account on behalf of the Cayman Islands, Switzerland Brazil or any political subdivision or authority of or in Brazil having power to tax or of or in any other jurisdiction in which either the Company is organized or a Guarantor is a otherwise resident for tax purposes or any political subdivision jurisdiction from or taxing authority through which payment is made (any of such jurisdiction (the aforementioned being a “Taxing Jurisdiction”), ) unless such withholding or deduction is required by law. If In the event that any such deduction taxes, duties, assessments, fees or withholding is at other governmental charges (and any time requiredfines, penalties or interest related thereto) are so imposed or levied, the Company or shall pay to each Holder such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 in order that every net payment made by the net amounts paid to the holder or the Trustee Company on each Security after such deduction or withholding will equal imposed upon or as a result of such payment by a Taxing Jurisdiction shall not be less than the principal amountamount then due and payable on such Security. The foregoing obligation to pay Additional Amounts, redemption price and interest (if any)however, on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts shall not apply to or in the following instancesrespect of:
(1i) if any withholding tax, duty, assessment or other governmental charge which would not be payable or due have been imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder, on the one hand, and the relevant Taxing Jurisdiction Jurisdiction, on the other hand (including, without limitation, such Holder being or having been a citizen or resident thereof or having been engaged in a trade or business or present therein or having, or having had, a permanent establishment therein), other than the holding or ownership mere receipt of the Security such payment or the collection ownership or holding 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 rights under such Security;
(ii) where any tax, duty, assessment or other governmental charge which would not have been so imposed but for the presentation is required, the Security was presented by such Holder for payment on a date more than 30 days after the date on which such payment became due and payable or was the date on which payment thereof is duly provided for, whichever is occurs later;
(2iii) any tax, duty, assessment or other governmental charge to the extent that such tax, duty, assessment or other governmental charge would not have been imposed but for the failure of such Holder to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of the Holder if any withholding tax (A) such compliance is attributable required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge and (B) at least 30 days prior to the date on which the Company shall apply this clause (iii), the Company shall have notified all Holders of Securities that some or all Holders of Securities shall be required to comply with such requirement;
(iv) any estate, inheritance, gift, sales, transfer, excise, excise or personal property or similar tax, levy, impost assessment or governmental charge;
(v) any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the Security;
(vi) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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, such directive; or
(vii) any combination of the above.
10.8.2 The Company 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 execution, delivery, registration or making of payments or enforcement in respect of the Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Brazil other than those resulting from, or required to be paid in connection with, the enforcement of the Securities following the occurrence of any Default or Event of Default.
10.8.3 No Additional Amounts shall be paid with respect to a payment on any Security to a Holder that is a fiduciary or partnership or 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 beneficial owner would not have been entitled to receive payment of the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Security.
10.8.4 The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgement 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, penalties, duties, assessments, fees or other governmental charges 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 Agents, as applicable, upon request therefor.
10.8.5 The Company shall:
(i) at least 10 Business Days prior to the first Payment Date (and at least 10 Business Days prior to each succeeding Payment Date or any Redemption Date or date of Maturity if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate), deliver to the Trustee and each Paying Agent an Officers’ Certificate (A) specifying the amount, if any, of taxes described in this Section 10.8 (the “Relevant Withholding Taxes”) required to be deducted or withheld on the payment of principal of or interest on the Securities to Holders and the Additional Amounts, if any, due to Holders in connection with such payment, and (B) certifying that the Company 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 authority as described in this Section 10.8; 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 10.8 and Section 10.4.
10.8.6 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 10.8 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 Holder requesting the same, evidence that the applicable Relevant Withholding Taxes have been paid.
10.8.7 Any Officers’ Certificate required by this Section 10.8 to be provided to the Trustee and each Paying Agent shall be deemed to be duly provided if sent by facsimile to the Trustee and each Paying Agent.
10.8.8 The obligations described under this Section 4.8 will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Gerdau Trade II Inc.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made on all Securities and, with respect to any series of Securities to which the Securities 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 the Guarantors will pay any amounts due with respect to the Securities Guarantees clear of and without withholding or deduction for or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the on account of the Cayman Islandsany present or future income, Switzerland stamp or any other jurisdiction in which either the Company tax, duty, levy, impost, assessment or other governmental charge of a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction similar nature (the collectively, “Taxing JurisdictionTaxes”), unless such withholding the Company, the Guarantor, or deduction a paying agent, as applicable, is required to withhold or deduct Taxes by lawlaw or by the official interpretation or administration thereof. If such deduction the Company, the Guarantor or withholding a paying agent, as applicable, is at required to withhold or deduct any time requiredamount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of a Relevant Taxing Jurisdiction, the Company or such the Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), shall 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 such that the net amounts paid to the holder or the Trustee amount received by each Holder (including such Additional Amounts), after such deduction withholding or withholding will equal deduction, shall not be less than the principal amount, redemption price and interest (amount such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any Taxes had not been withheld or deducted; provided that no Additional Amounts in the following instanceswill be payable with respect to Taxes:
(1) if any withholding that would not be payable or due have been imposed but for the fact that (i) existence of any present or former connection between such Holder or beneficial owner of the holder Securities or, with respect to any series of a Security Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the holderor possessor of a power over, such Holder or beneficial owner, if the holder such Holder or beneficial owner is an estate, trust, partnership or corporation), is and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a domiciliary, national citizen or resident of, thereof or engaging 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 maintaining having or having had a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is latertherein;
(2) if any withholding tax is attributable to any that are estate, inheritance, gift, sales, value added, transfer, excisepersonal property, personal property wealth or similar taxtaxes, levyduties, impost assessments or chargeother 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 provisions of Article Fifteen shall apply, the Guarantee;
(4) 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 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 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 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 thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;
(6) that 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 of such sections), any regulations promulgated 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 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.
(c) Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make all withholdings and deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the Securities or Guarantees, as the case may be. Upon request, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide to 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. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of such Securities.
(d) All references in this Indenture, 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 Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.
(e) 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 shall survive the termination 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 any successor Person to the Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay will make all payments of principal of, and premium (if any) and interest on, the Notes of any amounts due with respect to the Securities and the Guarantors will pay series without withholding or deduction for, or on account of, any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account of the Cayman Islandswithin Luxembourg, Switzerland or any other jurisdiction in which either the Company or a Guarantor ArcelorMittal is a resident for tax purposes or, in the case of a successor entity, any jurisdiction in which such successor entity is organized or resident for tax purposes (or any political subdivision or taxing authority of such jurisdiction thereof or therein) (the each, as applicable, a “Taxing Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. If In the event that any such withholding or deduction or withholding is at any time so required, the Company or such Guarantorany successor entity, as applicablethe case may be, willwill make such deduction or withholding, make payment of the amount so withheld to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), appropriate governmental authority and will pay such additional amounts (the “Additional Amounts”) that will result in respect the receipt by the Holders of principal amountsuch amounts that would have been received by such Holders had no such withholding or deduction been required by the Relevant Jurisdiction, redemption price and interest (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so except that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any no Additional Amounts in the following instanceswill be payable:
(1a) if any withholding would not be payable for or due but for the fact that on account of:
(i) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(A) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Holder or beneficial owner of such Note, as the case may be, and the Relevant Jurisdiction including, without limitation, such Holder or beneficial owner being or having been a citizen or resident of such Relevant Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein, other than the merely holding or ownership of the Security such Note or the collection receipt of principal amount, redemption price, repurchase price and interest payments thereunder;
(if any), in accordance with B) the terms presentation of the Securities and this Indenture, or the enforcement of the Security or such Note (ii) where presentation is required, the Security was presented ) 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 payment Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is laterexcept 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;
(2C) the failure of the Holder or beneficial owner to comply with 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 tax or deduction as to which Additional Amounts would have otherwise been payable to such Holder; or
(D) the presentation of such Note (where presentation is attributable to required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(ii) any estate, inheritance, gift, salessale, transfer, excise, excise or personal property or similar tax, levy, impost assessment or other governmental charge;
(iii) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (i) and (ii); or
(b) with respect to any payment of the 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 any payment to the extent that such payment would be required to be included in the income under the laws of a Relevant Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, or a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, or beneficial owner been the Holder thereof. Whenever there is mentioned in any context the payment of principal of, and any premium or interest on, any Note, such mention will be deemed to include 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.
Appears in 1 contract
Payment of Additional Amounts. (ai) 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 without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, levy, impost or charge which is payable otherwise than by withholding from payment of principal amount, redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) 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;
(7) if any withholding tax or deduction is required to be made in respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code, 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
(8) any combination of the instances described in the preceding clauses.
(ii) With respect to clause (a)(5) above, in the absence of evidence satisfactory to the Company or the applicable Guarantor, it may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. The Company or the applicable Guarantor also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than the sole beneficial owner of the Security to the extent that a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Security.
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made on all Securities and, with respect to any series of Securities to which the Securities 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 the Guarantors will pay any amounts due with respect to the Securities Guarantees clear of and without withholding or deduction for or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the on account of the Cayman Islandsany present or future income, Switzerland stamp or any other jurisdiction in which either the Company tax, duty, levy, impost, assessment or other governmental charge of a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction similar nature (the collectively, “Taxing JurisdictionTaxes”), unless such withholding the Company, the Guarantor or deduction a paying agent, as applicable is required to withhold or deduct Taxes by lawlaw or by the official interpretation or administration thereof. If such deduction the Company, the Guarantor or withholding a paying agent, as applicable, is at required to withhold or deduct any time requiredamount for or on account of Taxes from any payment made in respect of the Securities or, with respect to any series of Securities to which provisions of Article Fifteen shall apply, the Guarantee levied by or on behalf of a Relevant Taxing Jurisdiction, the Company or such the Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), shall 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 such that the net amounts paid to the holder or the Trustee amount received by each Holder (including such Additional Amounts), after such deduction withholding or withholding will equal deduction, shall not be less than the principal amount, redemption price and interest (amount such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any Taxes had not been withheld or deducted; provided that no Additional Amounts in the following instanceswill be payable with respect to Taxes:
(1) if any withholding that would not be payable or due have been imposed but for the fact that (i) existence of any present or former connection between such Holder or beneficial owner of the holder Securities or, with respect to any series of a Security Securities to which the provisions of Article Fifteen shall apply, the Guarantee (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the holderor possessor of a power over, such Holder or beneficial owner, if the holder such Holder or beneficial owner is an estate, trust, partnership or corporation), is and such Relevant Taxing Jurisdiction, including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a domiciliary, national citizen or resident of, thereof or engaging 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 maintaining having or having had a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is latertherein;
(2) if any withholding tax is attributable to any that are estate, inheritance, gift, sales, value added, transfer, excisepersonal property, personal property wealth or similar taxtaxes, levyduties, impost assessments or chargeother 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 provisions of Article Fifteen shall apply, the Guarantee;
(4) 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 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 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 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 thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later;
(6) that 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 of such sections), any regulations promulgated 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 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.
(c) Each of the Company, the Guarantor, or the applicable paying agent, as the case may be, shall make all withholdings and deductions required by law of it and shall remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law with respect to payments in respect of the Securities or Guarantees, as the case may be. Upon request, the Company, the Guarantor, or the applicable paying agent, as the case may be, shall provide to 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. Upon request, copies of those receipts or other documentation, as the case may be, shall be made available by the Trustee to the Holders of such Securities.
(d) All references in this Indenture, 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 Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.
(e) 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 shall survive the termination 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 any successor Person to the Company, the Guarantor, or the applicable paying agent, as the case may be, is incorporated or resident for tax purposes or any jurisdiction from or through which such Person makes any payment on the Guarantees and any department or political subdivision thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company and the Subsidiary Guarantors shall pay to holders of the Notes all additional amounts (“Additional Amounts”) that may be necessary so that every net payment of interest (including any amounts due premium paid upon redemption of the Notes) or principal to the Holder shall not be less than the amount provided for in the Notes. The term “net payment” means the amount the Company or its paying agent pay the Holder after deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges (“Taxes”) imposed with respect to the Securities that payment by a Mexican taxing authority (“Taxing Authority”).
(b) The Company and the Subsidiary Guarantors will shall not pay additional amounts to any amounts due with respect to Holder for or solely on account of any of the Securities Guarantees without deduction or withholding for following:
(1) any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges (imposed solely because at any time there is or was a “withholding tax”) imposed by connection between the Holder or for the account beneficial owner of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes Note and Mexico (or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”territory or possession thereof), unless including such withholding Holder or deduction beneficial owner (i) being or having been a citizen or resident thereof, (ii) maintaining or having maintained an office, permanent establishment, or branch subject to taxation therein, or (iii) being or having been present or engaged in a trade or business therein (other than the mere receipt of a payment or the ownership or holding of a Note),
(2) any estate, inheritance, gift, transfer or similar tax, assessment or other governmental charge imposed with respect to the Notes,
(3) any taxes, duties, assessments or other governmental charges imposed solely because the Holder or any other person fails to comply with any certification, identification, information, documentation or other reporting requirement concerning the nationality, residence, identity or connection with Mexico (or any political subdivision or territory or possession thereof) of the Holder or any beneficial owner of the Note, if compliance is required by law. If statute, regulation, officially published administrative practice of the taxing jurisdiction or by an applicable income tax treaty, which is in effect to which Mexico is a party, as a precondition to exemption from, or 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 will be required to provide such information and identification;
(4) any tax, duty, assessment or other governmental charge payable otherwise than by deduction or withholding is at any time required, the Company or such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), from payments on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:Notes,
(15) if any withholding would not be payable taxes, duties, assessments or due but other governmental charges with respect to such Note presented for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment more than 30 days after the date such on which the payment became due and payable or was the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever occurs later, except to the extent that the holders of such Note would have been entitled to such additional amounts on presenting such Note for payment on any date during such 30 day period, and
(6) any payment on the Note to a Holder that is later;a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the additional amounts had the beneficiary, settlor, member or beneficial owner been the holder of the Note.
(1) The limitations on the Company’s and Subsidiary Guarantors’ obligations to pay Additional Amounts set forth in Section 3.21(b)(3) above shall not apply:
(i) if the provision of information, documentation or other evidence described in such Section 3.21(b)(3) would be materially 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. and Mexican law, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation (including proposed regulations) and administrative practice.
(ii) unless (A) the provision of the information, documentation or other evidence described in such Section 3.21(b)(3) becomes expressly required by the applicable Mexican statutes, regulations and administrative practices and the Company cannot obtain such information, documentation or other evidence on its own through reasonable diligence, and (B) the Company otherwise would not meet the requirements for application of the reduced Mexican tax rate.
(iii) if the provisions of Article 195, Section II, subsection a) of the Mexican Income Tax Law (or a substitute equivalent provision) are not complied with by the Company or any Subsidiary Guarantor, and a higher withholding tax would apply.
(2) if In addition, such Section 3.21(b)(3) does not require, and shall not be construed to require that any person, including any non-Mexican pension fund, retirement fund or financial institution, register with the Ministry of Finance and Public Credit to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax tax.
(d) Upon request, the Company and the Subsidiary Guarantors shall provide the Trustee with documentation satisfactory to the Trustee evidencing the payment of Mexican taxes in respect of which we have paid any Additional Amount. The Company shall make copies of such documentation available to the Holders of the Notes or the Paying Agent upon request.
(e) 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 attributable 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 estatesuch claim for a refund or credit of such excess to the Company. However, inheritanceby making such assignment, giftthe Holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(f) In the event of any merger or other transaction described and permitted under Section 4.1, salesthen all references to Mexico, transferMexican law or regulations, exciseand Mexican taxing authorities under this Section 3.21 (other than Section 3.21(c)(1)) and under Article V and Section 5 of Exhibit A shall be deemed to also include the United States and any political subdivision therein or thereof, personal property United States law or similar taxregulations, levyand any taxing authority of the United States or any political subdivision therein or thereof, impost or charge;respectively.
Appears in 1 contract
Samples: Indenture (Homex Development Corp.)
Payment of Additional Amounts. (a) The Unless otherwise required by Bermuda law, neither the Company shall pay nor any amounts due Guarantor will deduct or withhold from payments made with respect to the Securities and the Guarantors will pay Guarantees, if any, on account of any amounts present or future Taxes. In the event that either the Company or any Guarantor is required to withhold or deduct on account of any Taxes due from any payment made under or with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either Guarantees, as the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority of such jurisdiction (the “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredcase may be, the Company or such Guarantor, as applicablethe case may be, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), 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 amounts paid to the holder or the Trustee after such deduction or withholding amount received by each Holder of Securities will equal the principal amount, redemption price and interest (amount that the Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder to the following instances:
extent: (1a) if that any withholding Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between the Taxing Jurisdiction Holder and Bermuda, other than the holding or ownership mere receipt of the Security payment, acquisition, ownership or disposition of such Securities or the collection exercise or enforcement of principal amountrights under the Securities, redemption pricethe Guarantees, repurchase price and interest (if any), in accordance with the terms of the Securities and or this Indenture, or the enforcement ; (b) of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (b) that any such Taxes would not have been imposed but for the presentation of the Securities, where presentation is required, for payment on a date more than 30 days after the date on which 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 thereof would have been entitled to Additional Amounts had the Securities been presented for payment on any date during such 30-day period; (d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif: (i) the making of the declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant taxing authority as a precondition to an exemption from, or reduction in, the relevant Taxes; and (ii) at least 60 days prior to the first payment with respect to which the Company or such Guarantor shall apply this clause (d), the Company or such Guarantor shall have notified all Holders of the Securities in writing that they shall be required to provide this declaration or claim; (e) 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 or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the Code; (f) any Taxes imposed on overall net income or any branch profits Taxes; (g) that a beneficiary or settlor with respect to a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment; or (h) any combination of the foregoing. The Company and such Guarantor shall also (w) withhold or deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing authority in accordance with all applicable laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the Holders of the Securities, within 60 days after the date the payment of any Taxes deducted or withheld is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if the same are not obtainable, other evidence of such payments. In addition, the Company or any Guarantor will 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 with respect to the creation, issue, offering, enforcement, redemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, the Company (or in respect of the Guarantees, such Guarantor) shall deliver to the Trustee an Officers’ 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 the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including defaulted interest), if any, or any other amount payable on or with respect to any of the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 3.07 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Samples: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. (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 without deduction or withholding for any and all present and future withholding taxes, levies, imposts and charges (a “withholding tax”) imposed by or 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”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay 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 amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:: Table of ContentsTable of Contents
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost or charge;
(3) if any withholding tax is attributable to any tax, levy, impost or charge which is payable otherwise than by withholding from payment of principal amount, redemption price, repurchase price and interest (if any);
(4) if any withholding tax would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the relevant tax authority of the holder or beneficial owner of the Security, if this compliance is required by statute or by regulation as a precondition to relief or exemption from such withholding tax;
(5) to the extent a holder of a Security is entitled to a refund or credit in such Taxing Jurisdiction of amounts required to be withheld by such Taxing Jurisdiction;
(6) if any withholding tax or deduction 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 other country on income of such person on any Securities 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;
(7) if any withholding tax or deduction is required to be made in respect of any tax, duty, assessment or other governmental charge imposed or withheld pursuant to Sections 1471 through 1474 of the Code, 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
(8) any combination of the instances described in the preceding clauses.
(b) With respect to clause (5) above, in the absence of evidence satisfactory to us we may conclusively presume that a holder of a Security is entitled to a refund or credit of all amounts required to be withheld. We also will not pay any Additional Amounts to any holder who is a fiduciary or partnership or other than the sole beneficial owner of the Security to the extent that a beneficiary or settlor with respect to such fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Security. Table of ContentsTable of Contents Article 13
Appears in 1 contract
Samples: Indenture (Transocean Ltd.)
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Company, Tyco and any amounts due other Guarantor under or with respect to the Securities Notes and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, duties, levies, imposts and imposts, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 Taxing Authority (the “Taxing Jurisdiction”"Taxes"), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredthe Company, the Company Tyco or such Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company, Tyco or such 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 fullest extent allowed by law (subject to compliance by Notes or the holder of a Security with any relevant administrative requirements)Guarantees, as the case may be, the Company, Tyco or such Guarantor, as the case may be, 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 amounts paid to the holder or the Trustee amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Notes to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Notes or the collection exercise or enforcement of principal amountrights under such Notes, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, Guarantees or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is laterIndenture);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Tax imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Notes or Guarantees (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 Additional Amounts had the Notes or Guarantees been presented for payment on any date during such 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company, Tyco or such Guarantor shall apply this clause (d), the Company, Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to provide such declaration or claim. The Company, Tyco or such Guarantor, 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 Authority in accordance with all applicable laws. The Company, Tyco or such Guarantor, as the case may be, will use its reasonable 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 Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Notes, within 60 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, Tyco or such Guarantor or if, notwithstanding the Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or Guarantees is due and payable, if the Company, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company, Tyco or such Guarantor will deliver to the Trustee an 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 Notes on the payment date. In addition, the Company, Tyco or such Guarantor, as the case may be, 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, Bermuda 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 Notes or the Guarantees. The foregoing provisions shall survive any termination of the discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, Tyco or such 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 such Person becomes a successor to the Company, Tyco or such Guarantor, as the case may be, shall be substituted for the date on which the series of Notes was issued. Whenever in the Indenture, the Notes 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 Notes or Guarantees, 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: Supplemental Indenture (Tyco International Group S A)
Payment of Additional Amounts. (a) The Company shall pay any amounts due with 10.7.1 All payments in respect to of the Securities and the Guarantors will pay shall be made without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, leviesduties, imposts and assessments or other governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or on behalf of Brazil (a “withholding taxBrazilian Taxes”), the Netherlands (“Dutch Taxes”) imposed by or for the account of the Cayman Islands, Switzerland or any other jurisdiction or political subdivision thereof having power to tax in which either the Company or a Guarantor any successor thereto is organized or incorporated or is a resident for tax purposes or any political subdivision or taxing authority of (“Foreign Taxes”), as applicable (each such jurisdiction (the jurisdiction, a “Relevant Taxing Jurisdiction”), unless the Company or the Guarantor, as the case may be, is compelled by law to deduct or withhold such taxes, duties, assessments or governmental charges. In the event of any such withholding or deduction, the Company or the Guarantor, as the case may be, shall make such deduction or withholding, will make payment of the amount so withheld to the appropriate governmental authority and will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary in order that every net payment made by the Company or the Guarantor, as the case may be, on the Securities after such withholding or deduction for or on account of any Brazilian Taxes, Dutch Taxes or Foreign Taxes will equal the respective amounts of principal, premium, if any, and interest which would have been receivable in respect of such Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required, except that no such Additional Amounts shall be payable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (a) a connection between the Holder and a Relevant Taxing 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 a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law. If law as a precondition to exemption from all or a part of such deduction tax, duty, assessment or withholding is at any time required, other governmental charge and the Company or such the Guarantor, as applicable, will, has given the Holders at least 30 days’ notice that Holders will be required to the fullest extent allowed by law comply with such requirement;
(subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”ii) in respect of principal amountany such taxes, redemption price and interest duties, assessments or other governmental charges with respect to a Security surrendered (if any), in accordance with the terms of the Securities and this Indenture, as may be necessary so that the net amounts paid to the holder or the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any withholding would not be payable or due but for the fact that (i) the holder of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 surrender is required, the Security was presented ) more than 30 days after the date on which such payment became due and payable or was the date on which payment thereof is duly provided forfor and notice thereof given to Holders, whichever occurs later, except to the extent that the Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period; Table of Contents (iii) where such withholding or deduction is later;
(2) if any withholding tax imposed on a payment to an individual and is attributable required to be made pursuant to any estateEuropean Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, inheritance2000 or any law implementing or complying with, giftor introduced in order to conform to, sales, transfer, excise, personal property or similar tax, levy, impost or chargesuch directive;
Appears in 1 contract
Samples: Indenture (Embraer S.A.)
Payment of Additional Amounts. (a) The Company shall pay All payments made by the Company, Tyco and any amounts due other Guarantor under or with respect to the Securities Notes and the Guarantors Guarantees will pay be made free and clear of and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any and all present and future withholding taxes, duties, levies, imposts and imposts, assessments or governmental charges (a “withholding tax”) of whatever nature imposed or levied by or for the account on behalf 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 Taxing Authority (the “Taxing JurisdictionTaxes”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time requiredthe Company, the Company Tyco or such Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the interpretation or administration thereof. In the event that the Company, Tyco or such 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 fullest extent allowed by law (subject to compliance by Notes or the holder of a Security with any relevant administrative requirements)Guarantees, as the case may be, the Company and Tyco or such Guarantor, as the case may be, 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 amounts paid to the holder or the Trustee amount received by each Holder of Notes (including Additional Amounts) after such withholding or deduction or withholding will equal the principal amount, redemption price and interest (amount that such Holder would have received if any), on the Securities. However, neither the Company nor any Guarantor will pay any such Taxes had not been required to be withheld or deducted; provided that no Additional Amounts in will be payable with respect to a payment made to a Holder of Notes to the following instancesextent:
(1a) if that any withholding such Taxes would not be payable or due have been so imposed but for the fact that (i) the holder existence of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some any present or former connection with between such Holder and the Taxing Jurisdiction Authority imposing such Taxes (other than the holding mere receipt of such payment, acquisition, ownership or ownership disposition of the Security such Notes or the collection exercise or enforcement of principal amountrights under such Notes, redemption price, repurchase price and interest (if any), in accordance with the terms of the Securities and this Indenture, Guarantees or the enforcement of the Security or (ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is laterIndenture);
(2b) if any withholding tax is attributable to of any estate, inheritance, gift, sales, transfer, excise, or personal property Taxes imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Notes or Guarantees (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 Additional Amounts had the Notes or Guarantees been presented for payment on any date during such 30-day period; or
(d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar taxclaim for exemption, levyif (x) the making of such declaration or claim is required or imposed by statute, impost treaty, regulation, ruling or charge;administrative practice of the relevant Taxing Authority as a precondition to an exemption from, or reduction in, the relevant Taxes, and (y) at least 60 days prior to the first payment date with respect to which the Company and Tyco or such Guarantor shall apply this clause (d), the Company and Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to provide such declaration or claim. The Company and Tyco or such Guarantor, 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 Authority in accordance with all applicable laws. The Company and Tyco or such Guarantor, as the case may be, will use their or its reasonable 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 Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the Holders of the Notes, within 60 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, Tyco or such Guarantor or if, notwithstanding the Company’s and Tyco’s or such Guarantor’s efforts to obtain such receipts, the same are not obtainable, other evidence of such payments by the Company and Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the Notes or Guarantees is due and payable, if the Company and Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company and Tyco or such Guarantor will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and setting forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Notes on the payment date. In addition, the Company and Tyco or such Guarantor, as the case may be, 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, Bermuda 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 Notes or the Guarantees. The foregoing provisions shall survive any termination of or the discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, Tyco or such 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. Whenever in the Indenture, the Notes 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 Notes or Guarantees, 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: Supplemental Indenture (Tyco International LTD /Ber/)
Payment of Additional Amounts. (a) The Company shall pay If any amounts due with respect to the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees without deduction or withholding for any and all present and future withholding taxes, leviesassessments or other governmental charges are imposed by the jurisdiction, imposts and charges other than the United States, where the Guarantor or a successor (a “withholding tax”"Payor") imposed by is organized or for the account of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is otherwise considered to be a resident for tax purposes purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on the Debentures, or, in each case, any political subdivision organization or taxing governmental authority of such jurisdiction thereof or therein having the power to tax (the “Taxing "Relevant Tax Jurisdiction”), unless 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 the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts (the “Additional Amounts”") in respect of principal amountany payments under the Debentures, redemption price and interest the Payor shall pay to each holder of a Debenture, to the extent it may lawfully do so, such additional amounts (if any), in accordance with the terms of the Securities and this Indenture, "Additional Amounts") as may be necessary so in order that the net amounts paid to such holder will be not less than the amount specified in such Debenture to which such holder or is entitled; provided, however, the Trustee after such deduction or withholding will equal the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor Payor shall not be required to make any Guarantor will pay any payment of Additional Amounts in the following instancesfor or on account of:
(1a) if any withholding tax, assessment or other governmental charge which would not be payable or due have been imposed but for the fact that (i) the existence of any present or former connection between such holder of a Security (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, the or possessor of a power over, such holder, if the such holder is an estate, trust, partnership partnership, limited liability company or corporation)) and the Relevant Tax Jurisdiction including, is without limitation, such holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a domiciliary, national citizen or resident of, thereof or engaging being or having been present or engaged in trade or business therein or maintaining having or having had a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction 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 therein or (ii) the presentation of a Debenture (where presentation is required, the Security was presented ) for payment on a date more than 30 days after (x) the date on which such payment became due and payable or was (y) the date on which payment thereof is duly provided for, whichever is occurs later;
(2b) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, levy, impost assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the Debentures;
(d) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the holder or the beneficial owner of the Debenture to comply with a request of the Payor addressed to the holder to provide information, documents or other evidence concerning the nationality, residence or identity of the holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(e) any combination of the above; nor will Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Debenture to any holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent such payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership, limited liability company or beneficial owner who would not have been entitled to such Additional Amounts had it been the holder of such Debenture. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the holders of the Debentures or the paying agent, as applicable, upon request therefor.
SECTION 7. The Indenture is hereby amended, solely with respect to the 5.25% Senior Notes Due 2007 and any Subsequent Debentures, by adding at the end of Section 7.01(f) thereof the word "or" and by adding to Section 7.01 the following subsections:
Appears in 1 contract
Samples: Second Supplemental Indenture (Cooper Industries LTD)
Payment of Additional Amounts. (a) The Company shall pay any amounts due All payments made by the Issuer or the Note Guarantors under, or with respect to to, the Securities Notes shall be made free and the Guarantors will pay clear of, and without withholding or deduction for or on account of any amounts due with respect to the Securities Guarantees without deduction present or withholding for any future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and all present and future withholding taxesother liabilities related thereto) (collectively, levies, imposts and charges (a “withholding taxTaxes”) imposed or levied by or for the account on behalf of the Cayman IslandsUnited States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or any other jurisdiction or, in which either the Company or a Guarantor is a resident for tax purposes or any political subdivision or taxing authority event that the Issuer appoints additional paying agents, by the jurisdictions of such jurisdiction additional paying agents (the a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. If such deduction or withholding is at any time required, the Company Issuer or such Note Guarantor, as applicablethe case may be, willis required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the fullest extent allowed by law (subject to compliance by Notes, the holder of a Security with any relevant administrative requirements)Issuer or such Note Guarantor, as the case may be, shall 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 amounts paid to the holder or the Trustee amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or withholding will equal deducted; provided, however, that the principal amount, redemption price and interest (if any), on the Securities. However, neither the Company nor any Guarantor will foregoing obligation to pay any Additional Amounts in the following instancesdoes not apply to:
(1) if any withholding would not be payable or due but for the fact that (i) any Taxes imposed solely because at any time there is or was a connection between the holder of Holder and a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having some present or former connection with the Taxing Jurisdiction (other than the holding or ownership mere purchase of the Security Notes, or receipt of a payment or the collection of principal amount, redemption price, repurchase price and interest (if any), in accordance with the terms ownership or holding of the Securities and this Indenture, or the enforcement of the Security or Notes),
(ii) where presentation is required, the Security was presented more than 30 days after the date such payment became due or was provided for, whichever is later;
(2) if any withholding tax is attributable to any estate, inheritance, gift, sales, transfer, excise, personal property or similar Tax imposed with respect to the Notes,
(iii) 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 precondition to exemption from, or reduction in the rate of, the tax, levyassessment or other governmental charge, impost and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or charge;withholding from payments on the Notes,
(v) [Reserved],
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment 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 extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 3.21(b) and Section 3.21(c) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such 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 such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(c) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the 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 Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(c) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax- exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable 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. 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 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 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 Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) The Company shall pay any amounts due Unless otherwise specified as contemplated by Section 3.01, with respect to Debt Securities, all amounts of principal of (and premium, if any, on) and interest on any such Debt Securities will be paid by the Securities and the Guarantors will pay any amounts due with respect to the Securities Guarantees Company, without deduction or withholding for for, or on account of, any and all present and future withholding income, stamp and other taxes, levies, imposts and charges (a “withholding tax”) imposed imposts, duties, charges, fees, deductions or withholdings now or hereafter imposed, levied, collected, withheld or assessed by or for the account on behalf of the Cayman Islands, Switzerland or any other jurisdiction in which either the Company or a Guarantor is a resident for tax purposes United Kingdom or any political subdivision or any taxing authority of such jurisdiction thereof or therein having the power to tax (the “Taxing Jurisdiction”), unless such deduction or withholding or deduction is required by law. If such deduction or withholding is of any such taxes, levies, imposts, duties, charges, fees, deductions or withholdings shall at any time requiredbe required by the Taxing Jurisdiction, the Company or will pay such Guarantor, as applicable, will, to the fullest extent allowed by law (subject to compliance by the holder of a Security with any relevant administrative requirements), pay additional amounts of, or in respect of, the principal amount of (the and premium, if any, on) and interest on such Debt Securities (“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 in order that the net amounts paid to the holder or the Trustee Holders of such Debt Securities, after such deduction or withholding will withholding, shall equal the principal amountrespective amounts of principal, redemption price premium and interest (if any)interest, on which would have been payable in respect of such Debt Securities had no such deduction or withholding been required, provided that the Securities. Howeverforegoing will not apply to any such tax, neither the Company nor any Guarantor will pay any Additional Amounts in the following instances:
(1) if any levy, impost, duty, charge, fee, deduction or withholding which would not be have been payable or due but for the fact that (i) the holder Holder of the Debt Security or the owner of a Security (or a fiduciary, settlor, beneficiary of, member or shareholder of, the holder, if the holder is an estate, trust, partnership or corporation), beneficial interest therein is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, the Taxing Jurisdiction or otherwise having has some present connection or former connection with the Taxing Jurisdiction other than the holding or ownership of the Security a Debt Security, or the collection of any payment of (or in respect of) principal amountof (premium, redemption priceif any, repurchase price on) and interest (if any), in accordance with the terms of the Securities and this Indenture, on or the enforcement of the Security or of, any Debt Security, (ii) where presentation the relevant Debt Security or Coupon or other means of payment of interest in respect of Debt Securities is required, presented for payment in the United Kingdom or (iii) the relevant Debt Security was or Coupon or other means of payment of interest in respect of Debt Securities is presented for payment more than 30 days after the date such payment became due or was provided for, whichever is later;
, except to the extent that the Holder would have been entitled to such Additional Amount on presenting the same for payment at the close of such 30 day period (2iv) such tax, levy, impost, duty, charge, fee, deduction or withholding is imposed on any interest to an individual and is required to be made pursuant to any European Union directive on the taxation of savings income relating to the proposal for a directive on the taxation of savings income published by the ECOFIN Council on December 13, 2001 or otherwise 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, such a directive; (v) presentation for payment of the relevant Debt Securities was made to a paying agent who was required to make (or pass through) such deduction or withholding and presentation for payment could have been made to a paying agent who was not required to make (or pass through) such deduction or withholding; (vi) there was a failure to comply by the Holder or the beneficial owner of the Debt Securities or the beneficial owner of any payment on such Debt Securities with a request of the Company addressed to the Holder or the beneficial owner, including a request of the Company related to a claim for relief under any applicable double tax treaty (a) to provide information concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or the beneficial owner or (b) to make any declaration or other similar claim to satisfy any information or reporting requirement, if any the information or declaration is required or imposed by a statute, treaty, regulation, ruling or administrative practice of the Taxing Jurisdiction as a precondition to exemption from withholding tax or deduction of all or part of the tax, duty, assessment or other governmental charge; (vii) such tax, levy, impost, duty, charge, fee, deduction or withholding is attributable to imposed in respect of any estate, inheritance, gift, salessale, transfer, excisepersonal property, personal property wealth or similar tax, duty, assessment or other governmental charge; or (viii) such tax, levy, impost impost, duty, charge, fee, deduction or charge;withholding is imposed in respect of any combination of the above items. For the avoidance of doubt, all payments in respect of the Debt Securities will be made subject to any withholding or deduction required pursuant to FATCA, and the Issuer shall not be required to pay any Additional Amounts on account of any such deduction or withholding required pursuant to FATCA. Whenever in this Indenture there is mentioned, in any context, the payment of any principal of (and premium, if any, on) or interest on any Debt Security of any series or the payment of any related Coupon or the net proceeds received on the sale or exchange of any Debt Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof 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.
Appears in 1 contract
