Payments Clear of Taxes. (1) Except as required by law or as expressly provided in this Section 5.4, any and all payments by the Borrower to the Lender hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed on the Lender, excluding Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Lender as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error. (2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4), then the sum payable to the Lender hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives an amount equal to the amount it would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the Lender) on behalf of and in the name of the Lender. If the liability is imposed on the Lender, the Borrower shall deliver to the Lender evidence satisfactory to the Lender, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld. (a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a). (b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 4 contracts
Samples: Credit Agreement, Credit Agreement, Credit Agreement
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority imposed on the LenderAgent or the Lenders, or by or on behalf of the foregoing, excluding Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”)a Lender. In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate thereto which arise from any payment made under or pursuant to this Agreement or the Loans or in respect of the Lender as to execution, delivery or registration of, or compliance with, this Agreement or the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest errorother Documents.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes Agent or as expressly provided for in this Section 5.4) the Lenders hereunder, or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 4 contracts
Samples: Credit Agreement (Potash Corp of Saskatchewan Inc), Credit Agreement (Potash Corp of Saskatchewan Inc), Revolving Term Credit Facility (Potash Corp of Saskatchewan Inc)
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any and all payments by the Borrower to the Lender hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed on the Lender, excluding Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Lender as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4), then the sum payable to the Lender hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives an amount equal to the amount it would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the Lender) on behalf of and in the name of the Lender. If the liability is imposed on the Lender, the Borrower shall deliver to the Lender evidence satisfactory to the Lender, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement
Payments Clear of Taxes.
(1a) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the Lender, excluding Taxes imposed with respect to such payments or by such Governmental Authority or such taxing authority if such Taxes are on behalf of the foregoing (and, for greater certainty, nothing in this Section 8.5(a) shall make the Borrower liable for any taxes imposed on or measured by reference to or in respect of the Lender’s overall net income or capital of the Lender or any franchise taxes imposed on it (in lieu thereof of net income taxes) by the jurisdiction (such excluded Taxes being collectively referred to herein as “Excluded Taxes”or any political subdivision thereof) under the laws of which the Lender is organized, in which its applicable lending office is maintained or in which its principal office is located). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunderhereunder other than taxes imposed on or measured by the Lender’s overall net income and franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which the Lender is organized, in which its applicable lending office is maintained or in which its principal office is located. The Borrower shall indemnify and hold harmless the Lender for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded any Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate thereto which arise from any payment made under or pursuant to this Agreement or the Loans or in respect of the Lender as to execution, delivery or registration of, or compliance with, this Agreement or the amount of such payment other Documents other than taxes imposed on or liability delivered to the Borrower measured by the Lender’s overall net income and franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which the Lender shall be conclusive absent manifest erroris organized, in which its applicable lending office is maintained or in which its principal office is located.
(2b) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4) hereunder, or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives an amount equal to the amount it would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable lawApplicable Law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the Lender) on behalf of and in the name of the Lender. If the liability is imposed on the Lender, the Borrower shall deliver to the Lender evidence satisfactory to the Lender, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 2 contracts
Samples: Credit Agreement (Powell Industries Inc), Credit Agreement (Powell Industries Inc)
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.47.5, any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed on the LenderAgent or the Lenders, excluding (a) Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the a Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”) and (b) any withholding taxes imposed by a Governmental Authority in Canada by reason of the Lender being a “non-resident” of Canada and dealing at “non-arm’s length with the Borrower (both within the meaning of the Income Tax Act (Canada)). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.47.5) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Agent or such Lender as to the amount of such payment or liability delivered to the Borrower by the Lender Agent or such Lender, as the case may be, shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.47.5) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.47.5), then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment to any Lender under Section 7.5(1) or any additional payment to the Lenderany Lender under Section 7.5(2), and if the such Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the such Lender and, in either case, which is both identifiable and quantifiable by the such Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the such Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the such Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the such Lender receives such request from the Borrower in a timely fashion). If the such Lender subsequently receives a Tax Refund, and the such Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the such Lender shall promptly reimburse the Borrower such amount as the such Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the such Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the a Lender to the Borrower is subsequently disallowed, the Borrower shall repay the such Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the such Lender to the relevant taxing authority) promptly after receipt of notice by the such Lender of such disallowance. The Borrower agrees to reimburse the each such Lender for the such Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the such Lender in respect of this Section 5.4(3)(a7.5(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a7.5(3)(a).
(b) In the event that the Borrower makes any indemnification payment to a Lender under Section 7.5(1) or any additional payment to the any Lender under Section 7.5(2) and in the event the such Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the such Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the such Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the such Lender harmless from and against any liabilities incurred as a result of the such Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the such Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the no Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the relevant Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Samples: Credit Agreement (Enbridge Inc)
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.47.5, any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed on the LenderAgent or the Lenders, excluding Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4Taxes) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Agent or such Lender as to the amount of such payment or liability delivered to the Borrower by the Lender Agent or such Lender, as the case may be, shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4Taxes) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4Taxes), then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment to any Lender under Section 7.5(1) or any additional payment to the Lenderany Lender under Section 7.5(2), and if the such Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the such Lender and, in either case, which is both identifiable and quantifiable by the such Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the such Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the such Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the such Lender receives such request from the Borrower in a timely fashion). If the such Lender subsequently receives a Tax Refund, and the such Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the such Lender shall promptly reimburse the Borrower such amount as the such Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the such Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the a Lender to the Borrower is subsequently disallowed, the Borrower shall repay the such Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the such Lender to the relevant taxing authority) promptly after receipt of notice by the such Lender of such disallowance. The Borrower agrees to reimburse the each such Lender for the such Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the such Lender in respect of this Section 5.4(3)(a7.5(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a7.5(3)(a).
(b) In the event that the Borrower makes any indemnification payment to a Lender under Section 7.5(1) or any additional payment to the any Lender under Section 7.5(2) and in the event the such Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the such Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the such Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the such Lender harmless from and against any liabilities incurred as a result of the such Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the such Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the no Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the relevant Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Samples: Credit Agreement (Enbridge Inc)
Payments Clear of Taxes.
(1a) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Administrative Agent or the Lenders hereunder shall will be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the LenderAdministrative Agent or the Lenders, excluding Taxes imposed with respect to such payments or by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect behalf of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”)foregoing. In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents documents contemplated hereunder. The Borrower shall will indemnify and hold harmless the Lender Administrative Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Administrative Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Lender as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.
(2b) If the Borrower shall will be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes Administrative Agent or as expressly provided for in this Section 5.4) the Lenders hereunder, or if any liability in respect of any such withholding or deduction shall therefor will be imposed or shall will arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Administrative Agent or the Lenders hereunder shall will be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Administrative Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall will pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAdministrative Agent or the Lenders) on behalf of and in the name of the LenderAdministrative Agent or the Lenders, as the case may be. If the liability is imposed on the LenderAdministrative Agent or the Lenders, the Borrower shall will deliver to the Lender Administrative Agent or the Lenders evidence satisfactory to the LenderAdministrative Agent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(ac) If any Taxes Each Lender will use reasonable efforts to contest (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender extent contestation is entitled to a cash refund reasonable) such imposition or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition assertion of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly will reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement reduction of Taxes, to the extent of amounts that have been paid by the Borrower in respect of any Tax Refund pursuant to such Taxes in accordance with this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was madeAgreement, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the such contestation and, provided that, no Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not will have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lenderrelevant Lender in its sole discretion, acting reasonably) in connection therewith unless it shall will have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the LenderAgent or the Lenders, excluding Taxes imposed with respect to such payments or by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect behalf of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”)foregoing. In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate of the Lender as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes Agent or as expressly provided for in this Section 5.4) the Lenders hereunder, or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes (other than withholding tax pursuant to Part XIII of the Income Tax Act (Canada)) and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the LenderAgent or the Lenders, excluding Taxes imposed with respect to such payments or by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect behalf of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”)foregoing. In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Agents or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate of the Lender as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.76
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender Agent or the Lenders hereunder (other than in respect withholding tax pursuant to Part XIII of Excluded Taxes or as expressly provided for in this Section 5.4) the Income Tax Act (Canada)), or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Samples: Credit Agreement
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the LenderAgent or the Lenders, excluding Taxes imposed with respect to such payments or by such Governmental Authority or such taxing authority if such Taxes are on behalf of the foregoing (and, for greater certainty, nothing in this Section 8.5(l) shall make the Borrower liable for any taxes imposed on or measured by reference to or in respect of the recipient’s overall net income or capital of the Lender or any franchise taxes imposed on it (in lieu thereof of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which such excluded Taxes being collectively referred to herein as “Excluded Taxes”recipient is organized, in which its applicable lending office is maintained or in which its principal office is located). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunderhereunder other than taxes imposed on or measured by the recipient’s overall net income and franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized, in which its applicable lending office is maintained or in which its principal office is located. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded any Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate thereto which arise from any payment made under or pursuant to this Agreement or the Loans or in respect of the Lender as to execution, delivery or registration of, or compliance with, this Agreement or the amount of such payment other Documents other than taxes imposed on or liability delivered to the Borrower measured by the Lender shall be conclusive absent manifest errorrecipient’s overall net income and franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized, in which its applicable lending office is maintained or in which its principal office is located.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to lo be paid to the Lender hereunder (other than in respect of Excluded Taxes Agent or as expressly provided for in this Section 5.4) the Lenders hereunder, or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a3) If any Taxes Each Lender shall use reasonable efforts to contest (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender extent contestation is entitled to a cash refund reasonable) such imposition or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition assertion of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement reduction of Taxes, to the extent of amounts that have been paid by the Borrower in respect of any Tax Refund pursuant to such Taxes in accordance with this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was madeAgreement, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liabilitycontestation and, and provided further that that, no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lenderrelevant Lender in its sole discretion, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
(4) Each Lender:
(a) that is not an authorized foreign bank as defined in section 2 of the Bank Act (Canada) represents, warrants and covenants to the Borrower that such Lender is, and shall at all times during the term of this Agreement remain, a resident of Canada for the purposes of the Income Tax Act (Canada);
(b) that is an authorized foreign bank as defined in section 2 of the Bank Act (Canada) represents, warrants and covenants to the Borrower that such Lender will receive all amounts paid or credited to such Lender under this Agreement in respect of its “Canadian banking business” for purposes of paragraph 212(13.3)(a) of the Income Tax Act (Canada) and, accordingly, such Lender is deemed, and shall at all times during the term of the Agreement remain to be deemed to be, a resident of Canada for purposes of the Income Tax Act (Canada), unless, in either the case of (a) or (b) above, such Lender either: (i) became a Lender as a result of a sale, assignment, transfer or grant made in compliance with Section 16.6 during the continuance of an Event of Default; or (ii) agrees in writing in favour of the Borrower that such Lender shall not be entitled to receive any additional amount under Section 8.5 in respect of, and the Borrower shall be entitled to make withholdings in respect of, withholding tax pursuant to Part XIII of the Income Tax Act (Canada) relating to amounts payable by the Borrower to such Lender hereunder.
Appears in 1 contract
Payments Clear of Taxes.
(1a) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed imposed, levied, collected, withheld or assessed by any Governmental Authority, or by or on the Lender, excluding Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect behalf of the overall net income or capital of foregoing (and, for greater certainty, nothing in this Section 5.4(a) shall make the Lender or Borrower liable for any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issuesissue, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Additional Obligation Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the contemplated hereunder other Documents contemplated hereunderthan Excluded Taxes. The Borrower shall indemnify and hold harmless the Lender Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Lenders and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate thereto which arise from any payment made under or pursuant to this Agreement or the Additional Obligation Loans or in respect of the Lender as to the amount of such payment execution, delivery or liability delivered to the Borrower by the Lender shall be conclusive absent manifest errorregistration of, or compliance with, this Agreement other than Excluded Taxes.
(2b) If the Borrower shall be required by law to deduct or withhold any amount Taxes other than Excluded Taxes from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4) Lenders hereunder, or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax Taxes other than Excluded Taxes payable for additional sums payable under this provision) the Lender receives Lenders receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes Taxes other than Excluded Taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities Taxes other than Excluded Taxes to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderLenders) on behalf of and in the name LEGAL_CAL:! 1257721.13 of the LenderLenders. If the liability is imposed on the LenderLenders, the Borrower shall deliver to the Lender Lenders evidence satisfactory to the LenderLenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(ac) If the Lenders are entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any Taxes (other than Excluded Taxes) are imposed on or treaty to which such jurisdiction is a party, with respect to any payment on or payments under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment it shall deliver to the LenderBorrower, at the time or times prescribed by applicable law, such properly completed and if the Lender is entitled to a cash refund executed documentation prescribed by applicable law or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if reasonably requested by the Borrower, file Borrower as will permit such Tax Forms in a timely fashion payments to be made without withholding or at such reduced rate.
(provided the Lender receives such request from d) Upon written notice sent by the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax applicable Lender during the term of this Agreement that such Lender will receive a refund, credit or deduction from a taxing authority in respect of a payment by the Borrower of Taxes, such Lender thereupon shall make commercially reasonable efforts to repay to the Borrower the amount with respect to which such indemnification payment refund, credit or additional payment was made, then the deduction equal to any net reduction in Taxes actually obtained by such Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, that is attributable to such indemnification payment refund, credit or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a)deduction.
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Samples: Subordinated Debt Agreement
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.46.5, any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed on the LenderAgent or the Lenders, excluding (i) Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the a Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”) and (ii) any withholding taxes imposed by a Governmental Authority in Canada by reason of the Lender being a “non-resident” of Canada and dealing at “non-arm’s length with the Borrower (both within the meaning of the Income Tax Act (Canada)). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.46.5) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Agent or such Lender as to the amount of such payment or liability delivered to the Borrower by the Lender Agent or such Lender, as the case may be, shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.46.5) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.46.5), then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment to any Lender under Section 6.5(1) or any additional payment to the Lenderany Lender under Section 6.5(2), and if the such Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.cash
Appears in 1 contract
Samples: Credit Agreement (Enbridge Inc)
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the LenderAgent or the Lenders, excluding Taxes imposed with respect to such payments or by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect behalf of the overall net income or capital of the Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”)foregoing. In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Agents or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate of the Lender as to the amount of such payment or liability delivered to the Borrower by the Lender shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes Agent or as expressly provided for in this Section 5.4)the Lenders hereunder, then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.47.5, any and all payments by the Borrower to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed on the LenderAgent or the Lenders, excluding Taxes imposed with respect to such payments by such Governmental Authority or such taxing authority if such Taxes are imposed on or measured by reference to or in respect of the overall net income or capital of the a Lender or any franchise taxes imposed in lieu thereof (such excluded Taxes being collectively referred to herein as “Excluded Taxes”) and any withholding taxes imposed by a Governmental Authority in Canada by reason of the Lender being a “non-resident” of Canada and dealing at “non-arm’s length” with the Borrower (both within the meaning of the Income Tax Act (Canada). In addition, the Borrower agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunder. The Borrower shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.47.5) or other amounts paid or payable by the Lender Agent or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of pocket expenses) resulting therefrom or with respect thereto. A certificate of the Agent or such Lender as to the amount of such payment or liability delivered to the Borrower by the Lender Agent or such Lender, as the case may be, shall be conclusive absent manifest error.
(2) If the Borrower shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.47.5) or if any liability in respect of any such withholding or deduction shall be imposed or shall arise from or in respect of any sum payable to the Lender Agent or the Lenders hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.47.5), then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be. If the liability is imposed on the LenderAgent or the Lenders, the Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment to any Lender under Section 7.5(1) or any additional payment to the Lenderany Lender under Section 7.5(2), and if the such Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the such Lender and, in either case, which is both identifiable and quantifiable by the such Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the such Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the such Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the such Lender receives such request from the Borrower in a timely fashion). If the such Lender subsequently receives a Tax Refund, and the such Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the such Lender shall promptly reimburse the Borrower such amount as the such Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the such Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the a Lender to the Borrower is subsequently disallowed, the Borrower shall repay the such Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the such Lender to the relevant taxing authority) promptly after receipt of notice by the such Lender of such disallowance. The Borrower agrees to reimburse the each such Lender for the such Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the such Lender in respect of this Section 5.4(3)(a7.5(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a7.5(3)(a).
(b) In the event that the Borrower makes any indemnification payment to a Lender under Section 7.5(1) or any additional payment to the any Lender under Section 7.5(2) and in the event the such Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the such Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the such Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the such Lender harmless from and against any liabilities incurred as a result of the such Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the such Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the no Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the relevant Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Samples: Credit Agreement (Enbridge Inc)
Payments Clear of Taxes.
(1) Except as required by law or as expressly provided in this Section 5.4, any Any and all payments by each of the Borrower Borrowers to the Lender Agent or the Lenders hereunder shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future Taxes and all liabilities with respect thereto imposed, levied, collected, withheld or assessed by any Governmental Authority or under the laws of any international tax authority imposed on the LenderAgent or the Lenders, excluding Taxes imposed with or by or on behalf of the foregoing; provided that, nothing in this Section 8.5(1) shall make a Borrower liable for or require it to pay an additional amount in respect to such payments by such Governmental Authority or such taxing authority if such Taxes are of any taxes imposed on or measured by reference to or in respect of the recipient’s overall net income or capital or franchise taxes, any U.S. federal withholding tax imposed by FATCA, any Canadian taxes imposed on a payment by or on account of any obligation of the Lender Borrower hereunder (i) to a person with which the Borrower does not deal at arm’s length (for the purposes of the Income Tax Act (Canada)) at the time of making such payment or (ii) in respect of a debt or other obligation to pay an amount to a person with whom the Borrower is not dealing at arm’s length (for the purposes of the Income Tax Act (Canada)) at the time of such payment, or any franchise Canadian taxes imposed on Lender by reason of such Lender being a “specified shareholder” of the Borrower, or not dealing at arm’s length with a “specified shareholder” of Borrower (in lieu thereof each case, as defined in subsection 18(5) of the Income Tax Act (such excluded Taxes being collectively referred to herein as Canada)) (collectively, “Excluded Taxes”). In addition, each of the Borrower Borrowers agrees to pay any present or future stamp, transfer, registration, excise, issues, documentary or other taxes, charges or similar charges or levies which arise from any payment made under this Agreement or the Loans or in respect of the execution, delivery or registration or the compliance with this Agreement or the other Documents contemplated hereunderhereunder other than taxes imposed on or measured by the recipient’s overall net income or capital or franchise taxes or any U.S. federal withholding tax imposed by FATCA. The Borrower Each of the Borrowers shall indemnify and hold harmless the Lender Agent and the Lenders for the full amount of all of the foregoing Taxes, charges or levies (other than Excluded Taxes or as expressly provided for in this Section 5.4) or other amounts paid or payable by the Lender Agents or the Lenders and any liability (including penalties, interest, additions to tax and reasonable out of properly documented out-of-pocket expenses) resulting therefrom or with respect thereto. A certificate thereto which arise from any payment made under or pursuant to this Agreement or the Loans or in respect of the Lender as to execution, delivery or registration of, or compliance with, this Agreement or the amount of such payment other Documents other than taxes imposed on or liability delivered to the Borrower measured by the Lender shall be conclusive absent manifest errorrecipient’s overall net income or capital or franchise taxes or any U.S. federal withholding tax imposed by FATCA, or other Excluded Taxes.
(2) If either of the Borrower Borrowers shall be required by law to deduct or withhold any amount from any payment or other amount required to be paid to the Lender hereunder (other than in respect of Excluded Taxes Agent or as expressly provided for in this Section 5.4) the Lenders hereunder, or if any liability in respect of any such withholding or deduction therefor shall be imposed or shall arise from or in respect of any sum payable to the Lender hereunder (other than in respect of Excluded Taxes or as expressly provided for in this Section 5.4)hereunder, then the sum payable to the Lender Agent or the Lenders hereunder shall be increased as may be necessary so that after making all required deductions, withholdings, and additional income tax payments attributable thereto (including deductions, withholdings or income tax payable for additional sums payable under this provision) the Lender receives Agent or the Lenders, as the case may be, receive an amount equal to the amount it they would have received had no such deductions or withholdings been required to be made or if such additional taxes had not been imposed; in addition, the applicable Borrower shall pay the full amount deducted or withheld for such liabilities to the relevant taxation authority or other authority in accordance with applicable law, such payment to be made (if the liability is imposed on the such Borrower) for its own account or (if the liability is imposed on the LenderAgent or the Lenders) on behalf of and in the name of the LenderAgent or the Lenders, as the case may be; provided that, nothing in this Section 8.5(2) shall make a Borrower liable for or require it to pay any additional amount in respect of taxes imposed on or measured by the recipient’s overall net income or capital or franchise taxes or in respect of any U.S. federal withholding tax imposed by FATCA. If the liability is imposed on the LenderAgent or the Lenders, the applicable Borrower shall deliver to the Lender Agent or the Lenders evidence satisfactory to the LenderAgent or the Lenders, acting reasonably, of the payment to the relevant taxation authority or other authority of the full amount deducted or withheld.
(a) If any Taxes (other than Excluded Taxes) are imposed on or with respect to any payment on or under this Agreement, in consequence of which the Borrower is required to make any indemnification payment or any additional payment to the Lender, and if the Lender is entitled to a cash refund or to a credit which is applied against Taxes otherwise payable in a taxation year of the Lender and, in either case, which is both identifiable and quantifiable by the Lender as being attributable to the imposition of such Taxes (a “Tax Refund”), and such Tax Refund may be obtained without increased liability to the Lender by filing one or more forms, certificates, documents, applications or returns (collectively, the “Tax Forms”), then the Lender shall notify the Borrower and shall, if requested by the Borrower, file such Tax Forms in a timely fashion (provided the Lender receives such request from the Borrower in a timely fashion). If the Lender subsequently receives a Tax Refund, and the Lender is able to identify the Tax Refund as being attributable, in whole or in part, to the Tax with respect to which such indemnification payment or additional payment was made, then the Lender shall promptly reimburse the Borrower such amount as the Lender shall determine, acting reasonably and in good faith, to be the proportion of the Tax Refund, together with any interest received thereon, attributable to such indemnification payment or additional payment as will leave the Lender, after the reimbursement, in the same position as it would have been if the indemnification payment or additional payment had not been required; provided that, if any Tax Refund reimbursed by the Lender to the Borrower is subsequently disallowed, the Borrower shall repay the Lender such amount (together with interest and, if such refund resulted from a request by the Borrower, any applicable penalty payable by the Lender to the relevant taxing authority) promptly after receipt of notice by the Lender of such disallowance. The Borrower agrees to reimburse the Lender for the Lender’s reasonable out-of-pocket costs and expenses, if any, incurred in complying with any request by the Borrower hereunder and agrees that all costs incurred by the Lender in respect of this Section 5.4(3)(a) may be deducted from the amount of any reimbursement to the Borrower in respect of any Tax Refund pursuant to this Section 5.4(3)(a).
(b) In the event that the Borrower makes any indemnification or additional payment to the Lender and in the event the Lender determines in its good faith judgment that it is not liable for the Taxes for which such indemnification payment or additional payment was made, the Lender agrees, if requested by the Borrower, to use reasonable efforts to cooperate with the Borrower in contesting the liability for such Taxes; provided that, the Borrower shall reimburse the Lender for any reasonable out-of-pocket costs and expenses incurred in providing such cooperation and shall indemnify and hold the Lender harmless from and against any liabilities incurred as a result of the Lender providing such cooperation or contesting such liability, and provided further that no such cooperation shall be required if such contest shall, in the Lender’s good faith judgment, subject it to any liability not covered by such indemnity, and provided further that the Lender shall not have any obligation to expend its own funds, suffer any economic hardship or take any action detrimental to its interests (as determined by the Lender, acting reasonably) in connection therewith unless it shall have received from the Borrower payment therefor or an indemnity with respect thereto, satisfactory to it.
Appears in 1 contract
Samples: Credit Agreement (Enerflex Ltd.)
