Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which the Company, or its successors, are organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable: (i) for or on account of: (A) any tax, duty, assessment or other governmental charge that would not have been imposed but for: (1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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; (2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or (3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner; (B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge; (C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or (D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or (ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof. (b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein. (c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company. (d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section. (e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with interest amounts payable in respect to of the Notes including payments of cash or delivery of ADSs upon conversion, will shall be made without deduction or withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments duties or governmental charges of whatever any nature whatsoever imposed or levied by way of deduction or within any jurisdiction in which withholding by or on behalf of the Company, or its successors, are organized or resident for tax purposes or through which payment is made Tax Jurisdiction (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"“Withholding Taxes”), unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any of such withholding or deduction is so requiredon payments of interest (but not in respect of the payment of any principal in respect of the Notes), the Company or any successor Issuer shall, to the Company will fullest extent permitted by law, pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may will be necessary to ensure in order that the net amount amounts received by the holder Holders, after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:
(i) for or on account ofof 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:
(Aa) are payable by any taxperson acting as custodian bank or collecting agent on the Holder’s or the beneficial owner’s behalf, duty, assessment or other governmental charge that 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 have been imposed but for:
(1) be payable to the existence of any present extent such deduction or former connection between withholding could be avoided or reduced if the Noteholder Holder or beneficial owner of such the Note and (or any financial institution through which the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder Holder or beneficial owner being holds the Notes or having been through which payment on the Note is made) (i) makes a national, domiciliary declaration of non-residence or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant other similar claim for exemption to the terms thereof relevant tax authority or was made complies with any reasonable certification, documentation, information or duly provided for; or
other reporting requirement imposed by the relevant tax authority or (3ii) enters into or complies with any applicable certification, identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the failure of the Noteholder Holder or beneficial owner of (or such Note to comply with a timely request from the Company financial institution) or any successor concerning ownership of the Company, addressed to the Noteholder Holder or beneficial owner (or financial institution) or concerning such Holder’s or beneficial owner, as the case may be, to provide certification, information, documents ’s (or other evidence concerning such holder's or beneficial owner's financial institution’s) nationality, residence, identity or connection with the Relevant Taxing Jurisdictionjurisdiction 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 make any declaration be, derived from sources in, or satisfy any other reporting requirement relating to such mattersare secured in, if and the Tax Jurisdiction; or
(d) are presented for payment more than 30 days after the Relevant Date except to the extent that due and timely compliance with such request is required by statute, regulation the Holder or administrative practice the beneficial owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the Relevant Taxing Jurisdiction period of 30 days assuming that day to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notesa Business Day; or
(De) any combination of taxes, duties, assessments are deducted or other governmental charges referred to in withheld by a paying agent from a payment if the preceding clauses (A), (B) payment could have been made by another paying agent without such deduction or (C)withholding; or
(iif) with respect to any 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 of the principal ofinterest becomes due, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included duly provided for and notice thereof is given in the income under the laws accordance with Section 11.04 of the Relevant Taxing JurisdictionBase Subordinated Indenture, for tax purposeswhichever occurs later. Moreover, of a beneficiary or settlor with respect to the fiduciary, 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 Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount amounts payable in respect of the Notes by shall be made subject to compliance with Sections 1471 through 1474 of the Company U.S. Internal Revenue Code of 1986 (the “Code”), or any regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including conversion into ADSsany agreement, if anylaw, regulation, or other official guidance implementing such agreement) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any applicable agreement described in this Section.
(eSection 1471(b) The foregoing obligation will survive termination or discharge of the IndentureCode. The Issuer shall have no obligation to pay Additional Amounts or otherwise indemnify a Holder or beneficial owner in connection with any such compliance with the Code.
Appears in 1 contract
Samples: Sixth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Payment of Additional Amounts. The Company will make all payments of principal of, and premium (aif any) All payments made by the Company or any successor to the Company under or with respect to and interest on, the Notes including payments of cash or delivery of ADSs upon conversion, will be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the Companycase of a successor entity, or its successors, are any jurisdiction in which such successor entity is organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"“Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor entity, as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the Company appropriate governmental authority and will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the holder after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which that would have been received by such holder Holders had no such withholding or deduction been requiredrequired by the Relevant Jurisdiction, except that no Additional Amount shall Amounts will be payable:
(ia) for or on account of:
(Ai) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Noteholder Holder or beneficial owner of such Note Note, as the case may be, and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Taxing 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 merely holding such Note or the receipt of payments thereunder;
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, or premium (if any, and ) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3C) the failure of the Noteholder Holder or beneficial owner of such Note to comply with a timely and reasonable request from of the Company or any successor of the Company, entity addressed to the Noteholder Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence documentation and certification concerning such holder's Holder’s or beneficial owner's ’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statutewould under applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial ownerHolder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, capital gains, excise, excise or personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(Diii) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), i) and (B) or (Cii); or
(iib) with respect to any payment of the principal of, or premium, premium (if any, ) or interest on, such Note to a Noteholder, if the Noteholder Holder who is a fiduciary, partnership or person Person other than the sole beneficial owner of that any payment to the extent that such payment would be required to be included in the income under the laws of the a Relevant Taxing 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 partner, or beneficial owner been the Noteholder Holder thereof.
(b) The Notes are subject . Whenever there is mentioned in all cases to any taxcontext the payment of principal of, fiscal and any premium or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise hereininterest on, the Company shall not be required to make a payment with respect to any taxNote, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, mention will be deemed to have assigned and transferred all right, title, and interest to any such claim include payment of Additional Amounts provided for a refund or credit of such excess in the Indenture to the Company.
(d) Any reference extent that, in this Indenture such context, Additional Amounts are, were or the Notes to principal, interest or any other amount would be payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Sectionthereof.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by The Company and any Restricted Subsidiary which after the Company 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 premium paid upon redemption of the Notes and any discount deemed interest under Mexican law) or any successor principal to the Company under 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 with respect to the Notes including payments of cash a Paying Agent pays any Holder after deducting or delivery of ADSs upon conversion, will be made without withholding or deduction for, an amount for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever nature (“Taxes”) imposed or levied with respect to that payment by or within any jurisdiction in which the Company, or its successors, are organized or resident for tax purposes or through which payment is made (Mexico or any political subdivision or taxing authority of any nature thereof or thereintherein (“Taxing Authority”).
(b) (eachThe Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee, as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding shall not pay Additional Amounts to any Holder for or deduction is required by law or by regulation or governmental policy having solely on account of any of the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payablefollowing:
(i) for any Taxes imposed solely because at any time there is or on account of:was a connection between the Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note);
(Aii) any estate, inheritance, gift or similar tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) with respect to the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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 thereinNotes;
(2iii) any Taxes imposed solely because the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof Holder or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note any other Person fails to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents identification or other evidence reporting requirement concerning such holder's or beneficial owner's the nationality, residence, identity or connection with Mexico, for tax purposes, of the Relevant Taxing Jurisdiction, Holder or to make any declaration or satisfy any other reporting requirement relating to such matters, beneficial owner of the Note if and to the extent that due and timely compliance with such request is required by statutelaw, regulation thereunder or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as by an applicable income tax treaty to which Additional Amounts would have otherwise been payable Mexico is a party, as a precondition to such Noteholder exemption from, or beneficial owner;
(B) any estatereduction in the rate of, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar the tax, assessment or other governmental chargecharge and the Company has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification;
(Civ) any tax, duty, assessment or other governmental charge that is Taxes payable otherwise than by deduction or withholding from payments under or on the Notes;
(v) any Taxes with respect to a Note presented for payment more than 30 days after the Notes; ordate 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 Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
(Dvi) any combination withholding or deduction imposed on a payment to or for the benefit of taxesan 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, duties2000, assessments or other governmental charges referred any law implementing or complying with, or introduced in order to in the preceding clauses (A)conform to, (B) or (C); orsuch Directive;
(iivii) with respect 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 of on the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder Holder that is a fiduciary, fiduciary or partnership or a person other than the sole beneficial owner of that payment any such payment, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of the payment would not have been entitled to such the Additional Amounts had that the beneficiary, settlor, partner member or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, Holder of the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or thereinNote.
(c) In The limitations on the event that obligations of the Company and any Restricted Subsidiary which after the Issue Date provides a Subsidiary Guarantee to pay Additional Amounts actually paid with respect 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 Notes are based on rates United States-Mexico income tax treaty), regulations and administrative practice; or
(ii) if the provisions of deduction or withholding of withholding taxes in excess Article 195, Section II of the appropriate rate 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 holder 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 NotesSection 3.19(b)(iii) does not require, andand shall not be construed to require, as 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 result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such reduction of, Mexican 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.
(d) Any reference in this Indenture or Promptly upon request, the Notes to principal, interest Company or any other amount payable 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 Additional Amount. The Company shall make copies of such documentation available to the Holders of the Notes by or the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this SectionPaying Agent upon request.
(e) The foregoing obligation will survive termination In the event of any merger or discharge other transaction described and permitted under Section 4.1, then all references to Mexico, Mexican law or regulations, and 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, U.S. law or regulations, and any taxing authority of the IndentureUnited States or any political subdivision therein or thereof, respectively.
Appears in 1 contract
Samples: Indenture (Alestra)
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with of principal, premium and interest in respect to the Notes including payments of cash or delivery of ADSs upon conversion, will each Security shall be made free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges or penalties or interest related thereto of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company, or its successors, are organized or resident for tax purposes or through which payment is made (Mexico or any political subdivision or taxing authority thereof or therein) therein (each, as applicable, a "RELEVANT TAXING JURISDICTIONMexican Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of lawregulation. In the event that any such withholding or deduction in respect of principal, premium or interest is so required, the Company or any successor to the Company will Issuer shall pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTSAdditional Amounts") as may be necessary to ensure that the net amount received will result in receipt by the each holder after of any Security of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which as would have been received by such holder with respect to such Security had no such withholding or deduction been required, except that no Additional Amount Amounts shall be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but for:by reason of
(1A) the existence of any present or former connection between such holder or the Noteholder or beneficial owner of such Note Security and the Relevant Taxing Jurisdiction Mexico (or any political subdivision or taxing authority thereof or therein) other than merely holding such Note Security or the receipt of, or enforcement of rights, under the Securities, or the receipt of payments thereunderin respect thereof, including, without limitation, such Noteholder holder or the beneficial owner of such Security being or having been a national, domiciliary or resident of such Relevant Taxing 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;; or
(2B) the presentation of such Note Security (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note Security became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial ownerwhichever is later, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and except to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction holder would have been entitled to reduce or eliminate any withholding or deduction as to which such Additional Amounts would have otherwise been payable to if it had presented such Noteholder or beneficial ownerSecurity for payment on the last day of such period of 30 days;
(B2) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C3) any tax, duty, assessment assessment, fee or other governmental charge that is payable otherwise than by withholding from payments under or with respect increase thereof to the Notes; or
(D) 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 combination of taxesapplicable certification, dutiesdocumentation, assessments information or other governmental charges referred to 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 preceding clauses 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 (A), (B) or (Csuch as IRS Forms W-8BEN and W-9); or
(ii4) with respect to any combination of items (1), (2) and (3). Whenever there is mentioned in any context, the payment of the principal ofprincipal, or premium, if any, premium or interest onin respect of any Security or the net proceeds received on the sale or exchange of any Security, such Note mention shall be deemed to a Noteholder, if include the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner payment of that payment Additional Amounts provided for in this Indenture to the extent that that, in such payment 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 included paid in connection with, the income under the laws enforcement of the Relevant Taxing Jurisdiction, for tax purposes, Securities following the occurrence of a beneficiary or settlor any Event of Default with respect to the fiduciarySecurities). 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 member of that partnership or a beneficial owner who would not have been entitled sum sufficient to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to cover any tax, fiscal transfer tax or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or similar governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Sectionconnection therewith.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Vitro Sa De Cv)
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, will Securities shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) imposed or levied by or within on behalf of (1) the Government of Canada or of any province or territory thereof or by any authority or agency therein or thereof having power to tax, (2) any jurisdiction in which the Company, or its successors, are organized or resident for tax purposes from or through which payment on the Securities is made (made, or any political subdivision or taxing governmental authority thereof or thereintherein having the power to tax, or (3) any other jurisdiction in which the payor is organized or otherwise considered to be resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (eachhereinafter, as applicable, a the "RELEVANT TAXING JURISDICTIONTAXES"), unless such withholding or deduction the Company is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having administration thereof. If the force Company is required to withhold or deduct any amount for or on account of law. In Taxes from any payment made under or with respect to the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company will shall pay to the holder of each Note (together with such payments) such additional amounts (the "ADDITIONAL AMOUNTS") as may be necessary to ensure so that the net amount received by the holder each Securityholder (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the including such deduction or withholding from Additional Amounts) shall equal not be less than the amounts which amount such Holder would have received if such Taxes had not been received by such holder had no such withholding withheld or deduction been requireddeducted; provided, except however, that no Additional Amount shall Amounts will be payable:
payable with respect to a payment made to a Holder (an "EXCLUDED HOLDER") (i) for with which the Company does not deal at arm's-length (within the meaning of the Canadian Tax Act) at the time of making such payment, or on account of:
(Aii) which is subject to such Taxes by reason of its being connected with Canada or any taxprovince or territory thereof otherwise than solely by reason of the Holder's activity in connection with purchasing the Securities, duty, assessment by the mere holding of Securities or other governmental charge that would not have been imposed but for:
(1) the existence by reason of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, . The Company will also (a) make such Noteholder withholding or beneficial owner being deduction and (b) remit the full amount deducted or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged withheld to the relevant authority in a trade or business therein or having or having had a permanent establishment therein;accordance with applicable law.
(2b) The Company will furnish the presentation of such Note (in cases in which presentation is required) more than Securityholders, within 30 days after the later date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts evidencing such payment by the Company or will, upon written request of each Holder (other than an Excluded Holder), reimburse each such Holder for the amount of (x) any Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Securities, and (y) any Taxes so levied or imposed with respect to any reimbursement under the foregoing clause (x) or this clause (y) but excluding any such Taxes on such Holder's net income so that the net amount received by such Holder (net of payments made under or with respect to the Securities) after such reimbursement will not be less than the net amount the Holder would have received if Taxes on such reimbursement had not been imposed.
(c) 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 will be obligated to pay Additional Amounts with respect to such payment, the Company will deliver to the Trustee an Officer's Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts to Holders on the payment date. Whenever in this Indenture there is mentioned, in any context, the payment of the principal ofprincipal, premium, if any, and interest onRedemption Price, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure change of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Companycontrol offer, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principalPurchase Price, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable under or with respect to that amount under the obligations referred any Security, such mention shall be deemed to in this Section.
(e) The foregoing obligation will survive termination or discharge include mention of the Indenturepayment 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. The Company will make all payments of principal of, and premium (aif any) All payments made by the Company or any successor to the Company under or with respect to and interest on, the Notes including payments of cash or delivery of ADSs upon conversion, will be made any series without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the Companycase of a successor entity, or its successors, are any jurisdiction in which such successor entity is organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"“Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor entity, as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the Company appropriate governmental authority and will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the holder after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which that would have been received by such holder Holders had no such withholding or deduction been requiredrequired by the Relevant Jurisdiction, except that no Additional Amount shall Amounts will be payable:
(ia) for or on account of:
(Ai) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Noteholder Holder or beneficial owner of such Note Note, as the case may be, and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Taxing 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 merely holding such Note or the receipt of payments thereunder;
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, or premium (if any, and ) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3C) the failure of the Noteholder Holder or beneficial owner of such Note to comply with a timely and reasonable request from of the Company or any successor of the Company, entity addressed to the Noteholder Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence documentation and certification concerning such holder's Holder’s or beneficial owner's ’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statutewould under applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial ownerHolder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, capital gains, excise, excise or personal property or similar tax, assessment or other governmental charge;
(Ciii) any tax, duty, assessment or other governmental charge that is payable otherwise other than by deduction or withholding from payments under a payment on or with in respect of a Note;
(iv) any tax, assessment or other governmental charge imposed by the Foreign Account Tax Compliance Act (“FATCA”) pursuant to sections 1471 through 1474 of the NotesU.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
(Dv) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (Ai), (Bii), (iii) or and (Civ); or
(iib) with respect to any payment of the principal of, or premium, premium (if any, ) or interest on, such Note to a Noteholder, if the Noteholder Holder who is a fiduciary, partnership or person Person other than the sole beneficial owner of that any payment to the extent that such payment would be required to be included in the income under the laws of the a Relevant Taxing 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 partner, or beneficial owner been the Noteholder Holder thereof.
(b) The Notes are subject . Whenever there is mentioned in all cases to any taxcontext the payment of principal of, fiscal and any premium or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise hereininterest on, the Company shall not be required to make a payment with respect to any taxNote, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, mention will be deemed to have assigned and transferred all right, title, and interest to any such claim include payment of Additional Amounts provided for a refund or credit of such excess in the Indenture to the Company.
(d) Any reference extent that, in this Indenture such context, Additional Amounts are, were or the Notes to principal, interest or any other amount would be payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Sectionthereof.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, this Canadian Note Guarantee by Guarantor will be made without free and clear of any withholding or deduction for, for or on account ofof any tax, any present duty, levy, impost, assessment or future taxes, duties, assessments or other governmental charges charge of whatever nature (collectively, “Tax”) imposed or levied by or within on behalf of Canada or any other jurisdiction in which the CompanyGuarantor is organized, resident or its successors, are organized or resident doing business for tax purposes or from or through which Guarantor makes any payment is made (on the Canadian Note Guarantee or any department or political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"“Relevant Taxing Jurisdiction”), unless such Guarantor (or an applicable withholding agent) is required to withhold or deduction deduct Taxes by law. If Guarantor (or an applicable withholding agent) is required by law to withhold or by regulation deduct any amount for or governmental policy having the force on account of law. In the event that Taxes of any such withholding Relevant Taxing Jurisdiction from any payment made under or deduction is so requiredwith respect to this Canadian Note Guarantee, the Company or any successor Guarantor, subject to the Company exceptions listed below, will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder or beneficial owner of the holder Notes after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such including withholding or deduction attributable to Additional Amounts payable hereunder) will not be less than the amount the Holder or beneficial owner would have received if such Taxes had not been requiredrequired to be so withheld or deducted.
(b) Guarantor will not, except that no however, pay Additional Amount shall be payableAmounts to a Holder or beneficial owner of Notes:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that to the extent the Taxes giving rise to such Additional Amounts would not have been imposed but for:
(1) for the existence of any present or former connection between the Noteholder Holder or beneficial owner (or between a fiduciary, settler, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) and the Relevant Taxing Jurisdiction (other than merely any connection resulting solely from the acquisition, ownership, holding such Note or disposition of Notes, the receipt of payments thereunder, including, without limitation, such Noteholder thereunder or beneficial owner being under this Canadian Note Guarantee and/or the exercise or having been a national, domiciliary enforcement of rights under any Notes or resident of such Relevant Taxing 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 thereinthis Canadian Note Guarantee);
(2ii) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) extent the Taxes giving rise to such Additional Amounts would not have been imposed but for the failure of the Noteholder Holder or beneficial owner of Notes, following Guarantor’s written request addressed to the Holder, to the extent such Note Holder or beneficial owner is legally eligible to do so, to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, informationidentification, documents information or other evidence concerning such holder's or beneficial owner's nationalityreporting requirements, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is whether required by statute, treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction, as a precondition to exemption from, or reduction in the rate of deduction or withholding of, Taxes imposed by the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder (including, without limitation, a certification that the Holder or beneficial ownerowner is not resident in the Relevant Taxing Jurisdiction);
(Biii) with respect to any estate, inheritance, gift, salesales, transfer, capital gains, excise, excise or personal property tax or any similar tax, assessment or other governmental chargeTaxes;
(Civ) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that the Taxes giving rise to such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who Additional Amounts would not have been entitled imposed but for the presentation by the Holder or beneficial owner of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(v) to the extent the Taxes giving rise to such Additional Amounts had that beneficiary, settlor, partner would not have been imposed but for the Holder or beneficial owner been not dealing at arm’s length, within the Noteholder thereof.meaning of the Income Tax Act (Canada), with the Company or Guarantor;
(bvi) The Notes are subject in all cases to any taxthe extent the Taxes giving rise to such Additional Amounts would not have been imposed but for such Holder or beneficial owner being, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise hereinnot dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with, a “specified shareholder” of the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.as defined in subsection 18(5) of the Income Tax Act (Canada) for purposes of the thin capitalization rules in the Income Tax Act (Canada);
(cvii) In to the event that extent the Taxes giving rise to such Additional Amounts actually paid with respect are United States federal withholding tax imposed pursuant to the Notes are based on rates of deduction or withholding of withholding taxes in excess Sections 1471 through 1474 of the appropriate rate applicable to the holder Internal Revenue Code of such Notes, and1986, as a result thereof such holder is entitled to make claim for a refund or credit amended as 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 date of such excess to the Company.
hereof (d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also amended or successor version that is substantively comparable and not materially more onerous to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.comply
Appears in 1 contract
Samples: Indenture (Valeant Pharmaceuticals International, Inc.)
Payment of Additional Amounts. (a) All Any and all payments made by the Company or any successor to the Company Holders, under or with respect to the Notes including payments of cash or delivery of ADSs upon conversionSecurities, will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within on behalf of Mexico or any jurisdiction 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 successorsjurisdiction, are organized or resident 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 tax purposes payment on a date more than 30 days after the date on which such payment became due and payable or through 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 stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties with respect thereto) imposed or levied by Mexico (or any political subdivision or taxing authority thereof or therein) (eachin respect of the creation, issue and offering of the Securities. Except as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding specifically provided in the Security or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredthis Indenture, the Company or shall not be required to make any successor payment with respect to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been of whatever nature imposed but for:
(1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed levied by any government or a any political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Durango Corp)
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter “Taxes”) imposed or levied by or within on behalf of the government of the country in which the Company or any successor thereof is organized or incorporated or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Company, or its successors, are organized or Company is otherwise resident for tax purposes or any jurisdiction from or through which any payment under or with respect to the Notes is made (or any political subdivision or taxing authority thereof or therein) including, without limitation, Canada and the United States (each, as applicable, a "RELEVANT TAXING JURISDICTION"“Relevant Taxing Jurisdiction”), unless such withholding or deduction the Company is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having administration thereof. If the force of law. In the event that any such withholding Company or deduction a paying agent is so requiredrequired 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 Company or any successor shall be required to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) on such Notes as may be necessary to ensure so that the net amount received by the holder any Holder or beneficial owner (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on shall not be less than the Additional Amounts) shall equal the amounts which amount such Holder or beneficial owner would have received if such Taxes had not been received by such holder had no such withholding withheld or deduction been requireddeducted; provided, except however, that no the foregoing obligation to pay Additional Amount shall be payableAmounts does not apply to:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge Taxes that would not have been so imposed but for:
(1) for the existence of any present present, former or former future connection between the Noteholder relevant Holder or beneficial owner (or between a fiduciary, settlor, beneficiary, member, partner or shareholder of, or possessor of such Note power over, the relevant Holder or beneficial owner, if the relevant Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunderJurisdiction, including, without limitationlimiting the generality of the foregoing, such Noteholder Holder or beneficial owner (or such fiduciary, settlor, beneficiary, partner, member, shareholder, or possessor) of the Notes being or having been, or being deemed or having been deemed, a nationalcitizen, domiciliary resident, or resident of such Relevant Taxing Jurisdiction or treated as a resident national thereof or being or having been, or being deemed or having been physically deemed, present or engaged in a trade or business therein or having or having had had, or being deemed to have or to have had, a permanent establishment therein;
(2ii) any estate, inheritance, gift, sales, goods and services, harmonized sales, transfer, personal property tax or similar Taxes;
(iii) any withholding or deduction in respect of the presentation Notes where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any law implementing or complying with, or introduced in order to conform to, such Directive, or presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Note (withholding or deduction by presenting the relevant Notes to any other paying agent in cases in which presentation is required) more than a European Union Member State, or where the payment could have been made without such deduction or withholding if the beneficiary of the payment had presented the Notes for payment within 30 days after the later of date on which such payment on the Notes 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 or beneficial owner would have been entitled to Additional Amounts had the Notes been presented on the last day of such 30-day period);
(iv) any Taxes imposed with respect to any payment of the principal of, of (or premium, if any, and on) or interest onon the Notes by the Company to any Holder or beneficial owner who is a fiduciary or partnership or any Person other than the sole beneficial owner of such payment, such Note became due and payable pursuant to the terms thereof extent that a beneficiary or was made settlor with respect to such fiduciary, a member of such a partnership or duly provided for; or
(3) the failure beneficial owner of such payment would not have been entitled to the Noteholder Additional Amounts had such beneficiary, settlor, member or beneficial owner been the actual Holder or beneficial owner of such Note Notes;
(v) any Taxes that are payable other than by remittance following deduction or withholding from payments made under or with respect to the Notes;
(vi) any Taxes that would not have been imposed but for the failure of the Holder and/or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed ’s or the Paying Agent’s request in writing at least 30 days before any withholding for such Taxes to the Noteholder or beneficial owner, as the case may be, Holder to provide certification, informationdocumentation, documents information or other evidence concerning such holder's or beneficial owner's the nationality, residence, identity or connection with the Relevant Taxing JurisdictionJurisdiction of the Holder and/or beneficial owner of such Notes, or to make any valid or timely declaration or similar claim or satisfy any other reporting requirement or to provide any information relating to such matters, if and to the extent that due and timely compliance with such request is whether required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction Jurisdiction, as a precondition to reduce exemption from, or eliminate any reduction in the rate of withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial ownerof, Taxes imposed by the Relevant Taxing Jurisdiction;
(Bvii) Taxes imposed under the Foreign Account Tax Compliance Act (including Sections 1471 through 1474 of the United States Internal Revenue Code and any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property regulations or similar tax, assessment or other governmental chargeofficial interpretations thereof);
(Cviii) any tax, duty, assessment Taxes that are required to be deducted or other governmental charge that is withheld from any payment under or in respect of the Notes as a consequence of the Holder or beneficial owner of Notes or the recipient of the interest payable otherwise than by withholding from payments on the Notes not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with the Company at the time of making any such payment; or
(ix) any combination of (i) to (viii) above.
(b) At least 30 calendar days prior to each date on which any payment under or with respect to the Notes; or
Notes is due and payable (D) any combination of taxesunless such obligation to pay Additional Amounts arises shortly before or after the 30th day prior to such date, duties, assessments or other governmental charges referred to in the preceding clauses (Awhich case it shall be promptly thereafter), (B) or (C); or
(ii) if the Company shall be obligated to pay Additional Amounts with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise hereinpayment, the Company shall not deliver to the trustee and paying agent for the affected Notes an Officers’ Certificate stating the fact that such Additional Amounts shall be required payable and the amounts so payable and shall set forth such other information necessary to make enable the Trustee or Paying Agent, as the case may be, to pay such Additional Amounts to Holders and beneficial owners of such Notes on the payment date. Each such Officers’ Certificate shall be relied upon until receipt of a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or thereinfurther Officers’ Certificate addressing such matters.
(c) In The Company shall also make such withholding or deduction and remit the event that Additional Amounts actually paid with respect full amount deducted or withheld to the Notes are based on rates of deduction or withholding of withholding taxes relevant authority in excess accordance with applicable law. The Company shall provide the Trustee with official receipts or, if notwithstanding the efforts of the appropriate rate applicable Company official receipts are not obtainable, other documentation reasonably satisfactory to the holder Trustee, evidencing the payment of any Tax so deducted or withheld for each Relevant Taxing Jurisdiction imposing such Taxes. The Company shall attach to each official receipt or other documentation a certificate stating (x) that the amount of such Tax evidenced by the official receipt or other documentation was paid in connection with payments in respect of the principal amount of the Notes and (y) the amount of such Tax paid per $1,000 of principal amount of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any Whenever reference is made in this Indenture Indenture, in any context, to: the payment of principal; redemption prices or the Notes to principal, interest purchase prices in connection with a redemption or purchase of Notes; interest; or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable on or with respect to that amount under the obligations referred Notes, such reference shall be deemed to include payment of Additional Amounts as described in this SectionSection 4.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The foregoing obligation will Company shall pay any present or future stamp, court, documentary or other similar taxes, charges or levies that arise in any jurisdiction from the execution, delivery or registration of, or enforcement of rights under, this Indenture or any related document.
(f) The obligations under this Section 4.18 shall survive termination any termination, Legal Defeasance or discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the IndentureCompany is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Kodiak Oil & Gas Corp)
Payment of Additional Amounts. (a) All The Company shall make all payments made by in respect of the Company PEPS Units (including any dividend payments or any successor to other distributions payable on the Company under or with respect to Preferred Shares and Contract Adjustment Payments on the Notes including payments of cash or delivery of ADSs upon conversion, will be made Purchase Contracts that form such PEPS Units) without withholding or deduction at source for, or on account of, any present or future taxesTaxes, duties, assessments unless such Taxes are required to be withheld or governmental charges of whatever nature imposed or levied deducted by or within any jurisdiction in which (i) the Company, or its successors, are organized or resident for tax purposes or through which payment is made laws (or any political subdivision regulations or rulings promulgated thereunder) of a Taxing Jurisdiction or any taxing authority thereof therein or therein(ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (eachincluding, as applicablewithout limitation, a "RELEVANT TAXING JURISDICTION"holding by a court of competent jurisdiction or by a taxing authority in a Taxing Jurisdiction), unless such .
(b) If a withholding or deduction by the Company is required by the law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredTaxing Jurisdiction, the Company or any successor shall, subject to the Company will certain limitations and exceptions described in Section 5.13(c), pay to the holder Holder of each Note any such PEPS Unit such additional amounts (the "ADDITIONAL AMOUNTSAdditional Amounts") as may be necessary so that every net payment made to ensure that such Holder in respect thereof, after the net amount received by the holder after such withholding or deduction (deduction, will not be less than the amount provided for in this Agreement, the Purchase Contract and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall Certificate of Designation to be then due and payable:.
(ic) Notwithstanding the foregoing, the Company shall not be required to pay any Additional Amounts under any PEPS Unit for or on account of:
(Ai) any tax, duty, assessment or other governmental charge that Taxes which would not have been imposed but for:
for the fact that such Holder (1a) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been was a nationalresident, domiciliary or resident of such Relevant national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant Taxing Jurisdiction or treated as a resident thereof otherwise had some connection with the relevant taxing jurisdiction other than by reason of the mere ownership of, or being receipt of payment under, such PEPS Unit, (b) presented such PEPS Unit for payment in the relevant Taxing Jurisdiction, unless such PEPS Unit could not have been presented for payment elsewhere, or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2c) the presentation of presented such Note (in cases in which presentation is required) PEPS Unit for payment more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note PEPS Unit became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial ownerwhichever is later, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and except to the extent that due and timely compliance with the Holder would have been entitled to such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to if it had presented such Noteholder or beneficial ownerPEPS Unit for payment on any day within that 30-day period;
(Bii) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental chargeTaxes;
(Ciii) any taxTaxes 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, duty, assessment residence or identity of the Holder or such beneficial owner or (b) to make any declaration or other governmental charge that similar claim or satisfy any information or reporting requirement, which is payable otherwise than required or imposed by withholding statute, treaty, regulation or administrative practice of the relevant Taxing Jurisdiction as a precondition to exemption from payments under all or with respect to the Notespart of such Taxes; or
(Div) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (Ai), (B) or (C); or
(ii) and (iii). In addition, the Company shall not pay Additional Amounts with respect to any payment of the principal of, or premium, if any, or interest on, any amounts on any such Note PEPS Unit to a Noteholder, if the Noteholder any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that payment such PEPS Unit to the extent that 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 under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess Holder of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the CompanyPEPS Unit.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made (including any premium paid upon redemption of the notes) by the Company or any successor to the Company under or with in respect to of the Notes including payments of cash or delivery of ADSs upon conversion, will be made free and clear of, and without withholding or deduction for, for or on account of, any present or future taxes, duties, assessments assessments, or other governmental charges of whatever nature imposed or levied by or within on behalf of Chile or any authority therein or thereof or any other jurisdiction in which the CompanyCompany is organized, or its successors, are organized or resident for tax purposes doing business or through which payment is payments are made in respect of the notes (or any political subdivision or taxing authority thereof or therein) (each, as applicable, of the aforementioned being a "RELEVANT TAXING JURISDICTION"“Taxing Jurisdiction”), unless such withholding or deduction the Company is required compelled by law to deduct or by regulation withhold such taxes, duties, assessments, or governmental policy having the force of lawcharges. In the event that any such withholding or deduction is so requiredevent, the Company will make such deduction or any successor withholding, make payment of the amount so withheld to the Company will appropriate governmental authority and pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received amounts receivable by the holder Holders of Notes after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts of principal and interest (or other amounts stated to be payable under the Notes) which would have been received by such holder had no receivable in respect of the Notes in the absence of such withholding or deduction been required(“Additional Amounts”). Notwithstanding the foregoing, except that no such Additional Amount Amounts shall be payable:
(i) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) charges in respect of such Note by reason of the existence of any present or former connection between the Noteholder such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of such Note Holder, if such Holder is an estate, a trust, a partnership, or a corporation) and the Relevant relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunderJurisdiction, including, without limitation, such Noteholder Holder (or beneficial owner such fiduciary, settlor, beneficiary, member or shareholder) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or present therein or having having, or having had had, a permanent establishment therein, other than the mere holding of the Note or enforcement of rights under this Indenture and the receipt of payments with respect to the Note;
(2ii) the presentation in respect of such Note Notes surrendered or presented for payment (in cases in which presentation if surrender or presentment is required) more than 30 days after the later of Relevant Date except to the date on which the payment of the principal of, premium, if any, and interest on, extent that payments under such Note became due would have been subject to withholdings and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner Holder of such Note would have been entitled to comply such Additional Amounts, on surrender of such Note for payment on the last day of such period of 30 days;
(iii) where such Additional Amount is imposed and is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(iv) to, or to a third party on behalf of, a Holder who is liable for such taxes, duties, assessments or other governmental charges by reason of such Holder’s failure to comply, with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, informationidentification, documents documentation or other evidence reporting requirement concerning such holder's or beneficial owner's the nationality, residence, identity or connection with the Relevant relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to Jurisdiction of such mattersHolder, if and to the extent that due and timely (1) compliance with such request is required by statutelaw as a precondition to, regulation exemption from, or administrative practice of reduction in the Relevant Taxing Jurisdiction rate of, the tax, assessment or other governmental charge and (2) the Company has given the Holders at least 30 days’ notice that Holders will be required to reduce provide such certification, identification, documentation or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial ownerother requirement;
(Bv) in respect of any estate, inheritance, gift, salesales, transfer, capital gains, excise, excise or personal property or similar tax, assessment or other governmental charge;
(Cvi) in respect of any tax, duty, assessment or other governmental charge that which is payable otherwise other than by deduction or withholding from payments under of principal of (including premium) or with interest on the Note;
(vii) in respect to the Notesof any tax imposed on overall net income or any branch profits tax; or
(Dviii) in respect of any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); orabove.
(iib) Notwithstanding anything to the contrary in this Section 4.06, none of the Company, the Paying Agent or any other person shall be required to pay any additional amounts with respect to any payment in respect of any taxes imposed under Sections 1471 through 1474 of the principal ofU.S. Internal Revenue Code of 1986, as amended (the “Code”), any successor law or regulation implementing or complying with, or premium, if any, or interest onintroduced 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.
(c) No Additional Amounts shall be paid with respect to any payment on a Note to a Noteholder, if the Noteholder Holder who is a fiduciary, partnership a partnership, a limited liability company or person other than the sole beneficial owner of that payment to the extent that such payment would be required by the relevant Taxing Jurisdiction to be included in the income under the laws of the Relevant Taxing Jurisdictionincome, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership partnership, an interest holder in a limited liability company or a beneficial owner who would not have been entitled to such the Additional Amounts had that beneficiary, settlor, partner member or beneficial owner been the Noteholder thereofHolder.
(bd) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise hereinabove, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(ce) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder Holder of such Notes, and, as a result thereof such holder Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder 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.
(df) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional AmountsAmount, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(eg) The foregoing obligation Company covenants that if the Company is required under applicable law to make any deduction or withholding on payments of principal of or interest on the Notes for or on account of any tax, duty, assessment or other governmental charge, at least 10 days prior to the first payment date on the Notes and at least 10 days prior to each payment date thereafter where such withholding is required, the Company, shall furnish the Trustee and the Paying Agent with an Officers’ Certificate (but only if there has been any change with respect to the matters set forth in any previously delivered Officers’ Certificate) instructing the Trustee and the Paying Agent as to whether such payment of principal of or interest on the Notes shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge, or, if any such deduction or withholding shall be required by the Taxing Jurisdiction, then such certificate shall: (i) specify the amount required to be deducted or withheld on such payment to the relevant recipient; (ii) certify that the Company, shall pay such deduction or withholding amount to the appropriate taxing authority; and (iii) certify that the Company, shall pay or cause to be paid to the Trustee or the Paying Agent such Additional Amounts as are required by this Section 4.06.
(h) The Company will furnish to the Holders, within 60 days after the date the payment of any Taxes so deducted or withheld is due pursuant to the applicable law, either certified copies of tax receipts evidencing such payment by the Company, or, if such receipts are not obtainable, other evidence of such payments by the Company reasonably satisfactory to the Holders.
(i) The Company will pay when due any present or future stamp, transfer, court or documentary taxes or any other excise or property taxes, charges or similar levies imposed by Chile (or any political subdivision or governmental authority thereof or therein having power to tax) with respect to the initial execution, delivery or registration of the Notes or any other document or instrument relating thereto.
(j) The Company agrees to indemnify the Trustee and the Paying Agent for, and to hold each harmless against, any loss, liability or expense reasonably incurred without bad faith on its part arising out of or in connection with actions taken or omitted by it in reliance on any Officers’ Certificate furnished pursuant to this Section 4.06 or any failure to furnish such a certificate.
(k) The obligations of the Company pursuant to this Section 4.06 shall survive termination or discharge of this Indenture, payment of the IndentureNotes and/or resignation or removal of the Trustee or the Paying Agent.
Appears in 1 contract
Payment of Additional Amounts. (a) All The Company is required by Mexican law to deduct and to withhold certain Taxes from payments made 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 (“Additional Amounts”) on those payments to the extent described in this Section 3.21. To the extent Taxes imposed by Mexico or any political subdivision or taxing authority 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 “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 successor such withholding or deduction of Mexican Taxes is equal to the Company under amount that the Holder would have received had no such withholding or deduction been required.
(b) The Payor shall not pay Additional Amounts to any Holder for or on account of any of the following:
(i) any Taxes imposed solely because of the existence of any present or former connection between such Holder and Mexico (other than the mere receipt of a payment or the ownership or holding of a Note) or enforcement of rights in respect of the Notes;
(ii) any estate, inheritance, gift, sales, transfer or similar tax, assessment or other governmental charge imposed with respect to the Notes including payments of cash Notes;
(iii) any Taxes imposed solely because the Holder or delivery of ADSs upon conversionany other Person fails to comply with any certification, will be made without withholding identification, information, documentation or deduction forother similar reporting requirement if (A) such compliance is required by law, regulation, or on account 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 present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in Taxes for which the CompanyPayor is required to pay Additional Amounts, (B) the Holder or its successorssuch 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 organized payable otherwise than by deduction or resident withholding from payments on the Notes;
(v) any Taxes with respect to such Note presented for tax purposes payment more than 30 days after the date on which the payment became due and payable or through the date on which payment thereof is made 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)) (each, as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment than comparable information or other governmental charge that would not have been reporting requirements imposed but for:
(1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statuteunder U.S. tax law, regulation or and administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction (such as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (BIRS Forms W-8BEN and W-9) or (C); or
(ii) with respect to Taxes imposed by Mexico or any payment political sub-division or taxing authority thereof, (A) Article 195, Section II, of the principal ofMexican 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 premiuman order of a competent authority based upon any such law or regulation, if anyin order to apply Article 195, Section II, of the Mexican income tax law (or interest ona substantially similar successor of such provision), (B) the Payor cannot obtain such Note 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 Noteholder, if non-Mexican pension or retirement fund or a non-Mexican financial institution or any other Holder register with the Noteholder is 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 fiduciary, partnership Holder or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary Note certify or settlor with respect to the fiduciary, provide information concerning whether it is or is not a member of that partnership tax-exempt pension or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereofretirement fund.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(ce) 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 Holder of such Notes, and, as a result thereof thereof, such holder 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 Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, title and interest to any such claim for a refund or credit of such excess to the CompanyPayor. 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).
(df) Any reference In the event a Payor conducts business in this Indenture 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 Notes relevant Note Guarantee, as the case may be, which would not have been required to principalbe so deducted or withheld but for such conduct of business in such Additional Taxing Jurisdiction, interest 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 amount payable excise or property taxes, charges or similar levies which arise in respect any jurisdiction from the execution, delivery or registration of the Notes by Notes, the Company Note Guarantees or any other document or instrument referred to therein (including conversion into ADSsother than a transfer of the Notes), if any) will be deemed also to refer to or the receipt of any Additional Amounts, unless the context requires otherwise, that may be payable payments with respect to that amount under the obligations referred 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 this Sectionconnection 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.
(eh) The foregoing obligation will paragraphs in this Section 3.21 shall survive termination any termination, defeasance or discharge of the IndentureIndenture 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. (a) All payments made by the Company or any successor to the Company Issuer under or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature Taxes imposed or levied by or within on behalf of any Taxing Authority in any jurisdiction in which the Company, or its successors, are Issuer is organized or is otherwise resident for tax purposes or any jurisdiction from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, each a "RELEVANT TAXING JURISDICTIONRelevant 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 or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company will and shall pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTSAdditional Amounts") as may be necessary to ensure so that the net amount received by the holder each Holder of Notes (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which amount the Holder would have received if such Taxes had not been received by such holder had no such withholding withheld or deduction been requireddeducted; provided, except however, that no Additional Amount Amounts shall be payable:
(i) for or on account of:
(A) payable with respect to any tax, duty, assessment or other governmental charge Tax that would not have been imposed but forimposed, payable or due:
(1) with respect to a Holder with which the Issuer or any Guarantor does not 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 existence of any present or former connection between the Noteholder or beneficial owner of such Note Holder and the Relevant Taxing Jurisdiction (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the Relevant Taxing Jurisdiction) other than merely the mere holding such Note of the Notes or enforcement of rights thereunder or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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 thereinrespect thereof;
(23) but for the failure to satisfy any certification, identification or other reporting requirements whether imposed by statute, treaty, regulation or administrative practice; or
(4) if the presentation of such Note Notes (in cases in which where presentation is required) more than for payment has not occurred within 30 days after the later date such payment 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 date on which Notes and such beneficial owner would not be entitled to the payment of the principal ofAdditional Amounts by reason of clause (1), premium(2), if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company(4) above. In addition, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been shall not be payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, Tax which is payable or premium, if any, or interest on, such Note to assessed on a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income Holder under the laws of the Relevant Taxing Jurisdictionjurisdiction(s) in which: (1) that Holder is incorporated, organized, resident or has a permanent establishment for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of (2) 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 Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder Holder's office is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable located in respect of the Notes by the Company (including conversion into ADSsamounts received or receivable in that jurisdiction, if any) will be deemed also that Tax is imposed on or calculated by reference to refer the income received or receivable by that Holder. Upon request, the Issuer shall provide the Trustee with documentation satisfactory to any the Trustee evidencing the payment of Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Ipsco Inc)
Payment of Additional Amounts. (aj) All payments made by or on behalf of the Company or any successor to the Company Issuer under or with respect to the Notes including payments of cash a Note, or delivery of ADSs upon conversiona Guarantor under or with respect to a Note Guarantee, will shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including penalties, interest and other liabilities related thereto) (hereinafter, “Taxes”) unless the Issuer or such Guarantor is required to withhold or deduct any such Taxes by law, including by the official interpretation or administration thereof by a relevant taxing authority. If any Taxes imposed or levied by or within on behalf of the government of France or any other jurisdiction in which the Company, Issuer or its successors, are 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) therein (eachany of the aforementioned being a “Taxing Jurisdiction”), will at any time be 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 Issuer or the relevant Guarantor, as applicable, a "RELEVANT TAXING JURISDICTION")shall, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may be necessary to ensure so that the net amount received by the holder of such Note (including Additional Amounts) after such withholding or deduction by the applicable withholding agent of such Taxes (and after deducting including any taxes such Taxes on the such Additional Amounts) shall equal not be less than the amounts which amount such holder would have received if such Taxes had not been received by such holder had no such withholding required to be withheld or deduction been requireddeducted; provided, except however, that no notwithstanding the foregoing, Additional Amount shall Amounts will not be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but forpaid:
(1) 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 Noteholder Holder or beneficial owner of a Note (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, the Holder or beneficial owner of such Note Note, if the Holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the Relevant relevant Taxing Jurisdiction (other than merely the receipt of such payment or the acquisition, ownership, holding or disposition of, or the execution, delivery, registration or enforcement of, such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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 thereinNote Guarantee);
(2) the presentation subject to subsection (e) of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofthis Section 4.20, premiumwith respect to any estate, if anyinheritance, and interest ongift, such Note became due and payable pursuant to the terms thereof sales, transfer or was made or duly provided for; orsimilar tax;
(3) subject to subsection (e) 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;
(4) to the failure of extent such Taxes would not have been imposed, deducted or withheld if the Noteholder Holder or beneficial owner of the Note or beneficial owner of any payment on such Note to comply with had (i) made a timely request from the Company declaration of non-residence, or any successor of the Companyother claim or filing for exemption, addressed to which it is entitled or (ii) complied with (to the Noteholder or beneficial ownerextent legally eligible to do so) any certification, as the case may be, to provide certificationidentification, information, documents documentation or other evidence reporting requirement concerning such holder's or beneficial owner's the nationality, residence, identity or connection with the Relevant 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 to make any declaration or satisfy any other reporting requirement relating 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 mattersTaxes 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 due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction Holder would have been entitled to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise had the Note been payable to presented on the last day of such Noteholder or beneficial owner30-day period);
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii6) with respect to any payment of the principal of, under or premium, if any, or interest on, such with respect to a Note to a Noteholder, if the Noteholder any Holder that is a fiduciary, fiduciary or partnership or any person other than the sole beneficial owner of that such payment or Note, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment or Note would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Noteholder thereof.actual Holder of such Note; and
(b7) any combination of items (1) through (6) above. The Notes are subject in all cases foregoing provisions shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment Taxing Jurisdiction with respect to any tax, assessment or governmental charge imposed by any government successor Person to the Issuer or a political subdivision or taxing authority thereof or thereinGuarantor.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Crown Holdings Inc)
Payment of Additional Amounts. (a) All Any and all payments made by the Company or any successor to the Company Holders, under or with respect to the Notes including payments of cash or delivery of ADSs upon conversionSecurities, will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestax, dutiesduty, assessments levy, impost, assessment or other governmental charges of whatever nature charge (including any interest or penalties with respect thereto) imposed or levied by or within on behalf of Mexico or any jurisdiction 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 successorsjurisdiction, are organized or resident 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 tax purposes payment on a date more than 30 days after the date on which such payment became due and payable or through 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 stamp, issue, registration, documentary or other similar taxes and other duties (including interest and penalties with respect thereto) imposed or levied by Mexico (or any political subdivision or taxing authority thereof or therein) (eachin respect of the creation, issue and offering of the Securities. Except as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding specifically provided in the Securities or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredthis Indenture, the Company or shall not be required to make any successor payment with respect to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been of whatever nature imposed but for:
(1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed levied by any government or a any political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under or with of principal, premium and interest in respect to the Notes including payments of cash or delivery of ADSs upon conversion, will each Note shall be made free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges or penalties or interest related thereto of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company, or its successors, are organized or resident for tax purposes or through which payment is made (Mexico or any political subdivision or taxing authority thereof or therein) therein (each, as applicable, a "RELEVANT TAXING JURISDICTIONMexican Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of lawregulation. In the event that any such withholding or deduction in respect of principal, premium or interest is so required, the Company or any successor to the Company will Issuer shall pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTSAdditional Amounts") as may be necessary to ensure that the net amount received will result in receipt by the each holder after of any Note of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which as would have been received by such holder with respect to such Note had no such withholding or deduction been required, except that no Additional Amount Amounts shall be payable:
(i) payable for or on account of:
(A1) any tax, duty, assessment or other governmental charge that would not have been imposed but for:solely by reason of
(1A) the existence of any present or former connection between such holder or the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction Mexico (or any political subdivision or taxing authority thereof or therein) other than merely holding such Note or the receipt of, or enforcement of rights under, the Notes, or the receipt of payments thereunderin respect thereof, including, without limitation, such Noteholder holder or the beneficial owner of such Note being or having been a national, domiciliary or resident of such Relevant Taxing 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 or fixed base therein;; or
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment in respect of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial ownerwhichever is later, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and except to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction holder would have been entitled to reduce or eliminate any withholding or deduction as to which such Additional Amounts would have otherwise been payable to if it had presented such Noteholder or beneficial ownerNote for payment on the last day of such period of 30 days;
(B2) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C3) any taxMexican 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, dutyidentification, assessment information, documentation or other governmental charge 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 under on or with in respect to the Notesof any Note; or
(D7) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (A1), (B2), (3), (4), (5) or (C6); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title, and interest to any such claim for a refund or credit of such excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Section.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Vitro Sa De Cv)
Payment of Additional Amounts. (a1) All payments made by 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 (including any premium paid upon redemption of the Securities) or principal to the Holder shall not be less than the amount provided for in the Securities. The term “net payment” means the amount the Company or any successor to its Paying Agent pays the Company under Holder after deducting or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, will be made without withholding or deduction for, an amount for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within on behalf of Mexico or any jurisdiction in which authority therein or thereof having power to tax (“Mexican Taxes”) imposed with respect to that payment by a Mexican taxing authority (“Taxing Authority”).
(2) The Company shall not pay additional amounts to any Holder for or solely on account of any of the Companyfollowing:
(A) any taxes, duties, assessments or its successors, are organized other governmental charges imposed solely because at any time there is or resident for tax purposes was a connection between the Holder or through which payment is made beneficial owner of the Security and Mexico (or any political subdivision or taxing authority thereof territory or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"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 Security),
(B) any estate, inheritance, gift, transfer or similar tax, assessment or other governmental charge imposed with respect to the Securities,
(C) 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 Security, if compliance is required by law statute, regulation, officially published administrative practice of the taxing jurisdiction or by regulation an applicable income tax treaty to which Mexico is a party and which is in effect, as a precondition to exemption from, or governmental policy having reduction in the force of law. In the event that any such withholding or deduction is so requiredrate of, the Company tax, assessment or any successor to other governmental charge and the Company has given the Holders at least 30 days’ notice that Holders will pay be required to the holder of each Note provide such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (information and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:identification;
(i) for or on account of:
(AD) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments under or with respect to on the Notes; orSecurities,
(DE) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to such Security 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 Security would have been entitled to such additional amounts on presenting such Security for payment on any date during such 30 day period, and
(F) any payment of on the principal of, or premium, if any, or interest on, such Note Security to a Noteholder, if the Noteholder Holder that is a fiduciary, fiduciary or partnership or a person other than the sole beneficial owner of that payment any such payment, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of the payment would not have been entitled to such Additional Amounts the additional amounts had that the beneficiary, settlor, partner member or beneficial owner been the Noteholder thereofHolder of the Security.
(b3) (A) The Notes are subject limitations on the Company’s obligations to pay Additional Amounts set forth in all cases to any taxSection 1008(2)(C) above shall not apply:
(i) if the provision of information, fiscal documentation or other law evidence described in such Section 1008(2)(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 Security, taking into account any relevant differences between U.S. and Mexican law, regulation or administrative practice, than comparable information or judicial interpretation. Except as specifically provided above or otherwise hereinother reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or thereinregulation (including proposed regulations) and administrative practice.
(cii) In unless (i) the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess provision of the appropriate rate information, documentation or other evidence described in such Section 1008(2)(C) becomes expressly required by the applicable to the holder of such NotesMexican statutes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, be deemed to have assigned regulations and transferred all right, titleadministrative practices, and interest to any such claim (ii) the Company otherwise would not meet the requirements for a refund or credit application of such excess to the Companyreduced Mexican tax rate.
(diii) Any reference in this Indenture or if the Notes to principalprovisions of Article 195, interest or any other amount payable in respect Section II, subsection a) of the Notes by the Company Mexican Income Tax Law (including conversion into ADSs, if anyor a substitute equivalent provision) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Sectionwould apply.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Homex Development Corp.)
Payment of Additional Amounts. The Company will make all payments of principal of, and premium (aif any) All payments made by the Company or any successor to the Company under or with respect to and interest on, the Notes including payments of cash or delivery of ADSs upon conversion, will be made any series without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within Luxembourg, any jurisdiction in which ArcelorMittal is resident for tax purposes or, in the Companycase of a successor entity, or its successors, are any jurisdiction in which such successor entity is organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"“Relevant Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor entity, as the case may be, will make such deduction or withholding, make payment of the amount so withheld to the Company appropriate governmental authority and will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the holder after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which that would have been received by such holder Holders had no such withholding or deduction been requiredrequired by the Relevant Jurisdiction, except that no Additional Amount shall Amounts will be payable:
(ia) for or on account of:
(Ai) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the Noteholder Holder or beneficial owner of such Note Note, as the case may be, and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Taxing 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 merely holding such Note or the receipt of payments thereunder;
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, or premium (if any, and ) or interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or, except to the extent that the Holder thereof would have been entitled to such Additional Amounts if it had presented such Note for payment on any date within such 30-day period;
(3C) the failure of the Noteholder Holder or beneficial owner of such Note to comply with a timely and reasonable request from of the Company or any successor of the Company, entity addressed to the Noteholder Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence documentation and certification concerning such holder's Holder’s or beneficial owner's ’s nationality, residence, identity or connection with the any Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statutewould under applicable law, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce have reduced or eliminate eliminated any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial ownerHolder; or
(D) the presentation of such Note (where presentation is required) for payment in the Relevant Jurisdiction, unless such Note could not have been presented for payment elsewhere;
(Bii) any estate, inheritance, gift, sale, transfer, capital gains, excise, excise or personal property or similar tax, assessment or other governmental charge;
(Ciii) any tax, duty, assessment or other governmental charge that is payable otherwise other than by deduction or withholding from payments under a payment on or with 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 NotesU.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
(Dv) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (Ai), (Bii), (iii) or and (Civ); or
(iib) with respect to any payment of the principal of, or premium, premium (if any, ) or interest on, such Note to a Noteholder, if the Noteholder Holder who is a fiduciary, partnership or person Person other than the sole beneficial owner of that any payment to the extent that such payment would be required to be included in the income under the laws of the a Relevant Taxing 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 partner, or beneficial owner been the Noteholder Holder thereof.
(b) The Notes are subject . Whenever there is mentioned in all cases to any taxcontext the payment of principal of, fiscal and any premium or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise hereininterest on, the Company shall not be required to make a payment with respect to any taxNote, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof such holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such holder shall, by accepting such Notes, mention will be deemed to have assigned and transferred all right, title, and interest to any such claim include payment of Additional Amounts provided for a refund or credit of such excess in the Indenture to the Company.
(d) Any reference extent that, in this Indenture 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 Notes Securities Administrator have any duty, responsibility or obligation to principalconfirm, interest verify or otherwise review any calculation or other determination in connection with Additional Amounts or any other amount payable possible make-whole premiums, and neither the Trustee nor the Securities Administrator shall have any liability in respect connection with, related to or arising out of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this Sectionsuch calculations or determinations.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments made by the Company Issuer or any successor to the Company under Note Guarantors under, or with respect to to, the Notes including payments of cash or delivery of ADSs upon conversion, will shall 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 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 present payment made under or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which with respect to the Company, or its successors, are organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredNotes, the Company Issuer or any successor to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial ownerGuarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (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 provide be withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts does not apply to:
(i) any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),
(ii) any estate, inheritance, gift, sales, transfer, 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, information, documents identification or other evidence reporting requirement concerning such holder's or beneficial owner's the nationality, residence, identity or connection with a Taxing Jurisdiction of the Relevant Taxing Jurisdiction, Holder or to make any declaration or satisfy any other reporting requirement relating to such matters, beneficial owner of the Note if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice the applicable law of the Relevant Taxing Jurisdiction as a precondition to reduce exemption from, or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estatereduction in the rate of, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar the tax, assessment or other governmental charge;charge and we have given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(Civ) any tax, duty, assessment or other governmental charge that is Taxes payable otherwise than by deduction or withholding from payments under or on the Notes,
(v) any Taxes with respect to such Note presented for payment more than 30 days after the Notes; ordate 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
(Dvi) any combination of taxes, duties, assessments or other governmental charges referred to in payment on the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder Holder that is a fiduciary, fiduciary or partnership or a person other than the sole beneficial owner of that payment any such payment, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of the payment would not have been entitled to such the Additional Amounts had that the beneficiary, settlor, partner member or beneficial owner been the Noteholder thereofHolder of the Note.
(bc) The Notes are subject obligations in all cases 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 tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment Taxing Jurisdiction with respect to any taxsuccessor to the Issuer or any Note Guarantor, assessment as the case may be. The Issuer or governmental charge imposed 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 any government or a political subdivision or taxing authority thereof or thereinthe Issuer.
(cd) 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 Holder of such Notes, and, and as a result thereof such holder 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 Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the Company.
(d) Any reference in this Indenture Holder makes no representation or the Notes warranty that we shall be entitled to principal, interest receive such claim for a refund or any credit and incurs no other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable obligation with respect to that amount under the obligations referred to in this Sectionthereto.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) All payments made by the Company or any successor to the Company under under, or with respect to to, the Notes including payments of cash or delivery of ADSs upon conversion, will shall 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 penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed or levied by or on behalf of any taxing authority in or of the United States, Mexico, any jurisdiction in which the Company is, or any successor of the Company is, organized (wherein any successor assumes the obligations of the Notes and this Indenture following a consolidation or merger or a transfer, conveyance, sale, lease or disposition of all or substantially all of the Company’s assets and properties), or any other jurisdiction through which payments on the Notes are made (a “Taxing Jurisdiction”), unless the Company is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Company is so required to withhold or deduct any amount for, or on account of, such Taxes from any present payment made under or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which with respect to the Company, or its successors, are organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredNotes, the Company or any successor to the Company will shall pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS"“Additional Amounts”) as may be necessary to ensure so that the net amount received by the holder each Holder (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on shall not be less than the Additional Amounts) shall equal the amounts which amount such Holder would have received if such Taxes had not been received by such holder had no such withholding required to be withheld or deduction been requireddeducted; provided, except however, that no the foregoing obligation to pay Additional Amount shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would Amounts does not have been imposed but forapply to:
(1) the existence of any present Taxes imposed solely because at any time there is or former was a connection between the Noteholder Holder or beneficial owner of the Notes, as the case may be, and a Taxing Jurisdiction, including such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Taxing 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 thereintherein (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of the Notes);
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal ofany estate, premiuminheritance, if anygift, and interest onsales, such Note became due and payable pursuant transfer, personal property or similar Tax imposed with respect to the terms thereof or was made or duly provided for; orNotes;
(3) any Taxes imposed solely because the failure of the Noteholder Holder or beneficial owner of such Note any other person fails to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents identification or other evidence reporting requirement concerning such holder's or beneficial owner's the nationality, residence, identity or connection with a Taxing Jurisdiction of the Relevant Taxing Jurisdiction, Holder or to make any declaration or satisfy any other reporting requirement relating to such mattersbeneficial owner of the Note, if and to the extent that due and timely compliance with such request is required by statutethe applicable law, regulation or administrative practice by an applicable income tax treaty of the Relevant Taxing Jurisdiction as a precondition to reduce exemption from, or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estatereduction in the rate of, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar the tax, assessment or other governmental charge, and the Company has given the Holders at least thirty (30) days’ notice that Holders shall be required to provide such information and identification;
(C4) any tax, duty, assessment or other governmental charge that is Taxes payable otherwise than by deduction or withholding from payments under or on the Notes;
(5) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent;
(6) any Taxes with respect to such Note presented for payment more than thirty (30) days after the Notes; ordate 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;
(D7) any combination of taxes, duties, assessments or other governmental charges referred to in payment on the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder Holder that is a fiduciary, fiduciary or partnership or a person other than the sole beneficial owner of that payment any such payment, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of the payment would not have been entitled to such the Additional Amounts had that the beneficiary, settlor, partner member or beneficial owner been the Noteholder thereofHolder of the Note;
(8) any Taxes withheld or deducted 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”), as amended (commonly referred to “FATCA”), any treaty, law, regulation or other official guidance enacted by the United States implementing FATCA, any agreement between the Company and the United States implementing FATCA pursuant to Section 1471(b)(1) of the Code, as amended, or any law of any jurisdiction implementing an intergovernmental approach to FATCA; or
(9) any combination of the foregoing.
(bc) The Notes are subject obligations in all cases Section 4.04(a) and Section 4.04(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment Taxing Jurisdiction with respect to any taxsuccessor to the Company. The Company 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 Company 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 thirty (30) days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, assessment or governmental charge imposed if such tax receipts are not reasonably available to the Company, furnish such other documentation that provides reasonable evidence of such payment by any government or a political subdivision or taxing authority thereof or thereinthe Company.
(cd) The exception to the Company’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 4.04(b) will not apply if (i) the provision of information, documentation or other evidence described in such 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 4.04(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 Company 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 would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 4.04(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.
(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 Company shall be deemed to include all Additional Amounts, if any that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.04 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder Holder of such Notes, and, and as a result thereof such holder 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 Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title, 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.
(dh) Any reference Notwithstanding anything to the contrary contained in this Indenture Indenture, the Company may, to the extent it is required to do so by law, deduct or the Notes to principal, interest withhold income or any other amount payable in respect of the Notes similar taxes imposed by the Company (including conversion into ADSs, if any) will be deemed also to refer to any Additional Amounts, unless the context requires otherwise, that may be payable with respect to that amount under the obligations referred to in this SectionUnited States of America from principal or interest payments.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
Samples: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. All payments of principal, premium, if any, and interest on Securities of any series, and all payments on the Guarantees shall be made without set-off, counterclaim, fees, liabilities or similar deductions, and free and clear of, and without deduction or withholding for, taxes, levies, imposts, duties, charges or fees of whatsoever nature now or hereafter imposed, levied, collected, deducted, withheld or assessed by or on behalf of the Commonwealth of Puerto Rico or any political subdivision or taxing authority thereof or therein ("Taxes"). If the Company, Guarantor, or any agent thereof is required by law or regulation to make any deduction or withholding for or on account of Taxes, the Company or Guarantor, as the case may be, 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) All payments made to any Holder of a Security or any interest therein or rights in respect thereof where such deduction or withholding is required by reason of such Holder having some connection with the Commonwealth of Puerto Rico or any political subdivision or taxing authority thereof or thereon other than the mere holding of a payment in respect of such security;
(b) in respect of any deduction or withholding that would not have been required but for the presentation by the Company Holder of a Security for payment on a date more than 30 days after the Date of Maturity or any successor to the Company under or with respect to the Notes including payments of cash or delivery of ADSs upon conversion, will be made without withholding or deduction date on which payment thereof is duly provided for, whichever occurs later; or
(c) in respect of any deduction or on account ofwithholding that would not have been required but for the failure to comply with any certification, any present identification or future taxesother reporting requirements concerning the nationality, dutiesresidence, assessments identity or governmental charges connection with the Commonwealth of whatever nature imposed or levied by or within any jurisdiction in which the CompanyPuerto Rico, or its successors, are organized or resident for tax purposes or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicableof the Holder of a Security or any interest therein or rights in respect thereof, a "RELEVANT TAXING JURISDICTION"), unless such withholding or deduction if compliance is required by law or by regulation or governmental policy having the force Commonwealth of law. In the event that any such withholding or deduction is so requiredPuerto Rico, the Company or any successor to the Company will pay to the holder of each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure that the net amount received by the holder after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts which would have been received by such holder had no such withholding or deduction been required, except that no Additional Amount shall be payable:
(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the Noteholder or beneficial owner of such Note and the Relevant Taxing Jurisdiction other than merely holding such Note or the receipt of payments thereunder, including, without limitation, such Noteholder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing 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;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment of the principal of, premium, if any, and interest on, such Note became due and payable pursuant to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of such Note to comply with a timely request from the Company or any successor of the Company, addressed to the Noteholder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such holder's or beneficial owner's nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Noteholder or beneficial owner;
(B) any estate, inheritance, gift, sale, transfer, capital gains, excise, personal property or similar tax, assessment or other governmental charge;
(C) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; or
(D) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (A), (B) or (C); or
(ii) with respect to any payment of the principal of, or premium, if any, or interest on, such Note to a Noteholder, if the Noteholder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation. Except as specifically provided above or otherwise herein, the Company shall not be required to make a payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
(c) In the event that Additional Amounts actually paid with respect to the Notes are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the holder of such Notes, and, as a result thereof precondition to exemption from such holder is entitled to make claim for a refund deduction 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.
(d) withholding. Any reference in this the Indenture to principal or the Notes to principal, interest or any other amount payable in respect of the Notes by the Company (including conversion into ADSs, if any) will shall be deemed also to refer to any Additional Amounts, unless the context requires otherwise, Amounts that may be payable with respect to that amount under the obligations referred to in this SectionSection 1012.
(e) The foregoing obligation will survive termination or discharge of the Indenture.
Appears in 1 contract
