Status of Banks; Tax Documentation. (i) Each Bank shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction. (ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States, (A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and (B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable: (I) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, (II) executed originals of Internal Revenue Service Form W-8ECI, (III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,
Appears in 2 contracts
Samples: Credit Agreement (Owens & Minor Inc/Va/), Credit Agreement (Owens & Minor Inc/Va/)
Status of Banks; Tax Documentation. (i) Each Bank shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws Legal Requirements or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws Legal Requirements or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrowers Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the such Bank’s entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers Borrower pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any the Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws Legal Requirements or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) I. executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
, (II.) executed originals of Internal Revenue Service Form W-8ECI, (III.) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,, (IV.) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or (V.) executed originals of any other form prescribed by applicable Legal Requirements as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Legal Requirements to permit the Borrower or the Agent to determine the withholding or deduction required to be made.
(iii) In the case of each Bank or the Issuing Bank that would be subject to withholding tax imposed by FATCA on payments made under this Agreement or the other Credit Documents if such Bank or Issuing Bank fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code), such Bank or Issuing Bank shall provide such documentation prescribed by applicable Legal Requirements (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower or the Agent to comply with its obligations under FATCA, to determine that such Bank or Issuing Bank has complied with such Bank’s or Issuing Bank’s obligations under FATCA, or to determine the amount to deduct and withhold from any such payments.
(iv) Each Bank shall promptly (A) notify the Borrower and the Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its Applicable Lending Office) to avoid any requirement of applicable Legal Requirements of any jurisdiction that the Borrower or the Agent make any withholding or deduction for taxes from amounts payable to such Bank.
Appears in 1 contract
Samples: Credit Agreement (Stone Energy Corp)
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the case may be, Borrower or the Administrative Agent to determine (A) whether or not payments made hereunder or under any other Credit Document are such Bank is subject to Taxesbackup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.10(e)(ii)(A), (Bii)(B) if applicable, the required rate of withholding or deduction, and (Cii)(D) below) shall not be required if in the entitlement Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes a U.S. Person, as defined in Section 7701(a)(30) of the United StatesCode,
(A) any Bank that is a U.S. Person Person, as defined in Section 7701(a)(30) of the Code, shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representativeor the Administrative Agent), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not certifying that such Bank or the Administrative Agent, as the case may be, is subject to exempt from U.S. federal backup withholding or information reporting requirements; andtax;
(B) each any Foreign Bank that shall, to the extent it is legally entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I1) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed originals of Internal Revenue Service Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of EXHIBIT J-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8ECIW-8BEN; or
(4) to the extent a Foreign Bank is not the beneficial owner, (III) executed originals of Internal Revenue Service Form W-8IMY W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of EXHIBIT J-2 or EXHIBIT J-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and all one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of EXHIBIT J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required supporting documentation,to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by applicable Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Bank shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its lending office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Bank.
Appears in 1 contract
Samples: Revolving Loan Agreement (Avalonbay Communities Inc)
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower RepresentativeAgent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Agent as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the Administrative Agentcontrary in the preceding two sentences, as the case may becompletion, by execution and submission of such documentation (other than such documentation set forth in Section 2.13(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Borrowers pursuant Bank’s reasonable judgment such completion, execution or submission would subject such Bank to this Credit Agreement any material unreimbursed cost or otherwise to establish expense or would materially prejudice the legal or commercial position of such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 (or applicable successor form) or such other documentation or information prescribed by applicable Laws Legal Requirements or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and;
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of U.S. withholding tax Tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(II.) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II.) executed originals of Internal Revenue Service Form W-8ECIW-8ECI (or applicable successor form), (III.) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit K-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service IRS Form W-8IMY and all required supporting documentation,W-8BEN or IRS Form W-8BEN-E (or applicable successor form); or
Appears in 1 contract
Samples: Fifth Amended and Restated Credit Agreement (Stone Energy Corp)
Status of Banks; Tax Documentation. (i) Each Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower Representative and to the Administrative Applicable Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Applicable Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower Representative or the Applicable Agent as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower Representative or the Applicable Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower Representative or the Applicable Agent as will enable the Borrower Representative or the Applicable Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the Administrative Agentcontrary in the preceding two sentences, as the case may becompletion, by execution and submission of such documentation (other than such documentation set forth in Section 3.11(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Borrowers pursuant Bank’s reasonable judgment such completion, execution or submission would subject such Bank to this Credit Agreement any material unreimbursed cost or otherwise to establish expense or would materially prejudice the legal or commercial position of such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Applicable Agent, and the Administrative Agent shall deliver on or prior to the date on which such Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower RepresentativeRepresentative or the Applicable Agent), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not certifying that such Bank or the Administrative Agent, as the case may be, is subject to exempt from U.S. federal backup withholding or information reporting requirementstax; and
(B) each Foreign Bank that shall, to the extent it is legally entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall do so, deliver to the Borrower Representative and the Administrative Applicable Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Applicable Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a partyparty (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(II) executed originals of Internal Revenue Service Form W-8ECI,
(III) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (IIIx) a certificate substantially in the form of Schedule 3.11-1 to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 871(h)(3)(B) or section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8IMY and all W-8BEN or W-8BEN-E, or
(IV) to the extent a Foreign Bank is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Schedule 3.11-2 or Schedule 3.11-3, Internal Revenue Service Form W-9 and/or other supporting documentation from each beneficial owner, as applicable (including, without limitation, if the Foreign Bank is treated as a partnership for U.S. federal income Tax purposes, required supporting documentationdocumentation with respect to such Foreign Bank’s direct and indirect partners that are claiming the portfolio interest exemption); provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Schedule 3.11-4 on behalf of each such direct and indirect partner,
(C) each Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Applicable Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Applicable Agent), executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable Laws or otherwise reasonably requested by the Borrower Representative or the Applicable Agent to permit the Borrower Representative or the Applicable Agent to determine the withholding or deduction required to be made, and
(D) if a payment made to a Bank under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrower Representative and the Applicable Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower Representative or the Applicable Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower Representative or the Applicable Agent as may be necessary for the Borrowers and the Applicable Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Closing Date.
(iii) Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Applicable Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, or as required by applicable law, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the case may be, Borrower or the Administrative Agent to determine (A) whether or not payments made hereunder or under any other Credit Document are such Bank is subject to Taxesbackup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.10(e)(ii)(A), (Bii)(B) if applicable, the required rate of withholding or deduction, and (Cii)(D) below) shall not be required if in the entitlement Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes a U.S. Person, as defined in Section 7701(a)(30) of the United StatesCode,
(A) any Bank that is a U.S. Person Person, as defined in Section 7701(a)(30) of the Code, shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(B) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I1) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,
party (IIx) with respect to payments of interest under any Loan Document, executed originals of Internal Revenue Service IRS Form W-8ECIW-8BEN (or IRS Form W-8BEN-E, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (IIIy) executed originals of Internal Revenue Service with respect to any other applicable payments under any Loan Document, IRS Form W-8IMY and all required supporting documentationW-8BEN (or IRS Form W-8BEN-E, as applicable) establishing an exemption from, or reduction of,
Appears in 1 contract
Status of Banks; Tax Documentation. (i) Each Bank shall deliver to the Borrower Representative City and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative City or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrowers City or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Related Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the such Bank’s entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers City pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any Borrower the City is a resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower Representative and the Administrative Agent, City and the Administrative Agent shall deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers City or the Administrative Agent as will enable the Borrowers City or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Related Document shall deliver to the Borrower Representative City and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative City or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(II) executed originals of Internal Revenue Service Form W-8ECI, (III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,
Appears in 1 contract
Samples: Reimbursement Agreement
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information by Borrower or Administrative Agent as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank without withholding or the at a reduced rate of withholding. In addition, any Bank, if reasonably requested by Borrower or Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the case may becontrary in the preceding two sentences, by the Borrowers pursuant completion, execution and submission of such documentation (other than such documentation set forth in Section 3.10(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Bank’s reasonable judgment such completion, execution or submission would subject such Bank to this Credit Agreement any material unreimbursed cost or otherwise to establish expense or would materially prejudice the legal or commercial position of such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any in the event that Borrower is resident for tax purposes a U.S. Person, as defined in Section 7701(a)(30) of the United StatesCode,
(A) any Bank that is a U.S. Person Person, as defined in Section 7701(a)(30) of the Code, shall deliver to Borrower and Administrative Agent on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of Borrower Representative and the or Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not certifying that such Bank or the Administrative Agent, as the case may be, is subject to exempt from U.S. federal backup withholding or information reporting requirements; andtax;
(B) each any Foreign Bank that shall, to the extent it is legally entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I1) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed originals of Internal Revenue Service Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10-percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8ECIW-8BEN; or
(4) to the extent a Foreign Bank is not the beneficial owner, (III) executed originals of Internal Revenue Service Form W-8IMY W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and all one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required supporting documentation,to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to Borrower and Administrative Agent at the time or times prescribed by applicable Law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Bank shall promptly (A) notify Borrower and Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its lending office) to avoid any requirement of applicable Laws of any jurisdiction that Borrower or Administrative Agent make any withholding or deduction for taxes from amounts payable to such Bank.
Appears in 1 contract
Status of Banks; Tax Documentation. (ia) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws law or by the taxing authorities of any a jurisdiction and pursuant to such other applicable law or reasonably requested information by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the case may be, Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation either (A) whether set forth in §3.1.5(b)(i), (b)(ii) and (b)(iii) or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, required by applicable law other than the required rate Code or the taxing authorities of the jurisdiction pursuant to such applicable law to comply with the requirements for exemption or reduction of withholding tax in that jurisdiction) shall not be required if in the Bank’s reasonable judgment such completion, execution or deduction, and (C) submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the entitlement legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(iib) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes in the United States,a U.S. Person:
(Ai) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(ii) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) executed originals a. in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
b. executed copies of IRS Form W-8ECI;
c. in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (IIx) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals copies of Internal Revenue Service IRS Form W-8BEN-E (or W-8BEN, as applicable); or
d. to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (IIIor W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(iii) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals copies of Internal Revenue Service Form W-8IMY any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(iv) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and all required supporting documentation,the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(c) Each Bank agrees that if any form or certification it previously delivered pursuant to this §3.1 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Banks; Tax Documentation. (ia) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative Company and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws law or by the taxing authorities of any a jurisdiction and pursuant to such other applicable law or reasonably requested information by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the case may be, Company or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation either (A) whether set forth in Section 3.1.5(b)(i), (b)(ii) and (b)(iii), below or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, required by applicable law other than the required rate Code or the taxing authorities of the jurisdiction pursuant to such applicable law to comply with the requirements for exemption or reduction of withholding tax in that jurisdiction) shall not be required if in the Bank’s reasonable judgment such completion, execution or deduction, and (C) submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the entitlement legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(iib) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United Statesevent that the Company is a U.S. Person,
(Ai) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, Company and the Administrative Agent shall deliver on or prior to the Borrower Representative, executed originals date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers Company or the Administrative Agent), as the case may beexecuted copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(ii) any Foreign Bank shall, to determine whether or not such Bank or the Administrative Agentextent it is legally entitled to do so, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative Company or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(IA) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(IIB) executed originals copies of Internal Revenue Service IRS Form W-8ECI;
(C) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BENE (or W-8BEN, as applicable); or
(D) to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BENE (IIIor W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
(iii) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals copies of Internal Revenue Service Form W-8IMY any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(iv) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Company and all required supporting documentation,the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(c) Each Bank agrees that if any form or certification it previously delivered pursuant to this Section 3.1 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Banks; Tax Documentation. (i) Each Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower Representative or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower Representative or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower Representative or the Administrative Agent as will enable the case may be, Borrower Representative or the Administrative Agent to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.is
(ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, on or prior to the date on which such Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent shall deliver to the Borrower RepresentativeAgent), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not certifying that such Bank or the Administrative Agent, as the case may be, is subject to exempt from U.S. federal backup withholding or information reporting requirementstax; and
and (B) each Foreign Bank that shall, to the extent it is legally entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall do so, deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
: (I) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,
party (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty, (II) executed originals of Internal Revenue Service Form W-8ECIW- 8ECI, (III) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Schedule 3.11- 1 to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 871(h)(3)(B) or section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8IMY W-8BEN or W- 8BEN-E, or
(iii) Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and all required supporting documentation,the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the case may be, Borrower or the Administrative Agent to determine (A) whether or not payments made hereunder or under any other Credit Document are such Bank is subject to Taxesbackup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 8.4(f)(ii)(A), (Bii)(B) if applicable, the required rate of withholding or deduction, and (Cii)(D) below) shall not be required if in the entitlement Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(iii) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes in the United Statesa U.S. Person,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(B) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I1) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of Internal Revenue Service IRS Form W-8ECI;
(3) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BENE (or W-8BEN, as applicable); or
(4) to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BENE (IIIor W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals copies of Internal Revenue Service Form W-8IMY any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and all required supporting documentation,the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Samples: Revolving Credit Agreement (Erp Operating LTD Partnership)
Status of Banks; Tax Documentation. (i) Each Bank shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrowers Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the such Bank’s entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers Borrower pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any the Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank Lender that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Loan Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank Lender becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank Lender is legally entitled to do so), whichever of the following is applicable:
(I) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(II) executed originals of Internal Revenue Service Form W-8ECI, ,
(III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,
(IV) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or
(V) executed originals of any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable laws to permit the Borrower or the Agent to determine the withholding or deduction required to be made.
(iii) Each Foreign Lender shall provide, promptly upon the reasonable demand of the Borrower or the Administrative Agent, any information, form or document, fully and accurately completed, that may be required in order to allow the requesting party to make payments under this Agreement or the other Loan Documents without any deduction or withholding for or on account of any Tax otherwise required to be withheld or assessed under FATCA and shall (and shall cause other persons acting on its behalf to) comply with any information gathering requirements and reporting requirements (including entering into any agreement with the United States Internal Revenue Service), in each case, that are required to obtain a complete exemption from any U.S. withholding taxes under FATCA with respect to payments received by or on behalf of such Foreign Lender.
(iv) Each Bank shall promptly (A) notify the Borrower and the Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable laws of any jurisdiction that the Borrower or the Agent make any withholding or deduction for taxes from amounts payable to such Bank.
(v) The Borrower shall not be required to pay any amount pursuant to this §5.2 to any Bank that is organized under the laws of a jurisdiction outside of the United States of America or the Agent, if it is organized under the laws of a jurisdiction outside of the United States of America, if such Lender or the Agent, as applicable, fails to comply with the requirements of this subsection (e). If any such Bank fails to deliver the above forms or other documentation to the extent required hereunder, then the Borrower may withhold from such payment to such Bank such amounts as are required by the Code. In the event of any such failure, if any Governmental Authority asserts that the Borrower did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of any Bank, such Bank shall indemnify the Borrower therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable by or to the Borrower under this Section, and costs and expenses (including all fees and disbursements of any law firm or other external counsel and the allocated cost of internal legal services and all disbursements of internal counsel) of the Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Properties LTD Partnership)
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the case may be, Borrower or the Administrative Agent to determine (A) whether or not payments made hereunder or under any other Credit Document are such Bank is subject to Taxesbackup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 8.4(f)(ii)(A), (Bii)(B) if applicable, the required rate of withholding or deduction, and (Cii)(D) below) shall not be required if in the entitlement Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes in the United Statesa U.S. Person,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(B) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I1) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of Internal Revenue Service IRS Form W-8ECI;
(3) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (IIIor W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals copies of Internal Revenue Service Form W-8IMY any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and all required supporting documentation,the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Samples: Revolving Credit Agreement (Erp Operating LTD Partnership)
Status of Banks; Tax Documentation. (i) Each Bank shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdictionjurisdiction (including, if applicable, any documentation necessary to prevent withholding under sections 1471-1474 of the Internal Revenue Code). Each such Bank shall, whenever a lapse in time or change in circumstances renders such documentation obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and Administrative Agent of its legal inability to do so.
(ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, on or prior to the date on which such Bank or the Administrative Agent becomes a Bank or the Administrative Agent under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Bank or the Administrative Agent is legally entitled to do so), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), such properly completed and duly executed documentation as will permit such payments to be made without imposition, deduction or withholding of Indemnified Taxes or Other Taxes or at a reduced rate, including whichever of the following is applicable:
(I) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(II) executed originals of Internal Revenue Service Form W-8ECI, ,
(III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,
(IV) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 871(h)(3)(B) or section 881(c)(3)(B) of the Internal Revenue Code, (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code or (D) receiving any payment under any Credit Document that is effectively connected with a U.S. trade or business and (y) executed originals of Internal Revenue Service Form W-8BEN, or
(V) executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax (including, if applicable, any documentation necessary to prevent withholding under Sections 1471-1474 of the Internal Revenue Code) or otherwise reasonably requested by the Borrowers or the Administrative Agent together with such supplementary documentation as may be prescribed by applicable Laws or otherwise reasonably requested by the Borrowers or the Administrative Agent to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made.
(iii) Each Bank shall promptly (A) notify the Borrower Representative and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its Applicable Lending Office or the assignment of its rights and obligations with respect to the relevant Loan or Letter of Credit to another of its offices, branches or affiliates) to avoid any requirement of applicable Laws of any jurisdiction that the Borrowers or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Bank. Without limiting the obligations of the Banks set forth above regarding delivery of certain forms and documents to establish each Bank’s status for U.S. withholding tax purposes, each Bank agrees promptly to deliver to the Administrative Agent or the Borrowers, as the Administrative Agent or the Borrowers shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such other documents and forms required by any relevant taxing authorities under the Laws of any other jurisdiction, duly executed and completed by such Bank, as are required under such Laws to confirm such Bank’s entitlement to any available exemption from, or reduction of, applicable withholding taxes in respect of all payments to be made to such Bank outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to establish such Bank’s status for withholding tax purposes in such other jurisdiction. Each Bank shall promptly (i) notify the Administrative Agent of any change in circumstances which would modify or render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Bank, and as may be reasonably necessary (including the re-designation of its Applicable Lending Office or the assignment of its rights and obligations with respect to the relevant Loan or Letter of Credit to another of its offices, branches or affiliates) to avoid any requirement of applicable Laws of any such jurisdiction that any Borrower or the Administrative Agent make any deduction or withholding for taxes from amounts payable to such Bank. Additionally, each of the Borrowers shall promptly deliver to the Administrative Agent or any Bank, as the Administrative Agent or such Bank shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Bank or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Bank of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.
Appears in 1 contract
Status of Banks; Tax Documentation. (i) Each Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower Representative and to the Administrative Applicable Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Applicable Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower Representative or the Applicable Agent as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower Representative or the Applicable Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower Representative or the Applicable Agent as will enable the Borrower Representative or the Applicable Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the Administrative Agentcontrary in the preceding two sentences, as the case may becompletion, by execution and submission of such documentation (other than such documentation set forth in Section 3.11(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Borrowers pursuant Bank’s reasonable judgment such completion, execution or submission would subject such Bank to this Credit Agreement any material unreimbursed cost or otherwise to establish expense or would materially prejudice the legal or commercial position of such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Applicable Agent, and the Administrative Agent shall deliver on or prior to the date on which such Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower RepresentativeRepresentative or the Applicable Agent), executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not certifying that such Bank or the Administrative Agent, as the case may be, is subject to exempt from U.S. federal backup withholding or information reporting requirementstax; and
(B) each Foreign Bank that shall, to the extent it is legally entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall do so, deliver to the Borrower Representative and the Administrative Applicable Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Applicable Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a partyparty (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(II) executed originals of Internal Revenue Service Form W-8ECI,
(III) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (IIIx) a certificate substantially in the form of Schedule 3.11-1 to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 871(h)(3)(B) or section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8IMY and all W-8BEN or W-8BEN-E, or
(IV) to the extent a Foreign Bank is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Schedule 3.11-2 or Schedule 3.11-3, Internal Revenue Service Form W-9 and/or other supporting documentation from each beneficial owner, as applicable (including, without limitation, if the Foreign Bank is treated as a partnership for U.S. federal income Tax purposes, required supporting documentationdocumentation with respect to such Foreign Bank’s direct and indirect partners that are claiming the portfolio interest exemption); provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Schedule 3.11-4 on behalf of each such direct and indirect partner,
(C) each Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative and the Applicable Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Applicable Agent), executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by applicable Laws or otherwise reasonably requested by the Borrower Representative or the Applicable Agent to permit the Borrower Representative or the Applicable Agent to determine the withholding or deduction required to be made, and
(D) if a payment made to a Bank under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrower Representative and the Applicable Agent at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower Representative or the Applicable Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower Representative or the Applicable Agent as may be necessary for the Borrowers and the Applicable Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the Closing Date.
(iii) Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower Representative and the Applicable Agent in writing of its legal inability to do so. Additionally, each of the Borrowers shall promptly deliver to the Applicable Agent or any Bank, as the Applicable Agent or such Bank shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Bank or the Applicable Agent under such Laws in connection with any payment by the Applicable Agent or any Bank of Taxes, or otherwise in connection with the Credit Documents, with respect to such jurisdiction.
Appears in 1 contract
Status of Banks; Tax Documentation. (ia) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative Company and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws law or by the taxing authorities of any a jurisdiction and pursuant to such other applicable law or reasonably requested information by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the case may be, Company or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation either (A) whether set forth in §3.1.5(b)(i), (b)(ii) and (b)(iii), below or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, required by applicable law other than the required rate Code or the taxing authorities of the jurisdiction pursuant to such applicable law to comply with the requirements for exemption or reduction of withholding tax in that jurisdiction) shall not be required if in the Bank’s reasonable judgment such completion, execution or deduction, and (C) submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the entitlement legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(iib) Without limiting the generality of the foregoing, if any in the event that a Borrower is resident for tax purposes in the United Statesa U.S. Person,
(Ai) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, Company and the Administrative Agent shall deliver on or prior to the Borrower Representative, executed originals date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers Company or the Administrative Agent), as the case may beexecuted copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(ii) any Foreign Bank shall, to determine whether or not such Bank or the Administrative Agentextent it is legally entitled to do so, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative Company or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) executed originals a. in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W- 8BENE (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
b. executed copies of IRS Form W-8ECI;
c. in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (IIx) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals copies of Internal Revenue Service IRS Form W-8BENE (or W-8BEN, as applicable); or
d. to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BENE (IIIor W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
(iii) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals copies of Internal Revenue Service Form W-8IMY any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(iv) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Company and all required supporting documentation,the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iv), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(c) Each Bank agrees that if any form or certification it previously delivered pursuant to this §3.1 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower RepresentativeAgent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Agent as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the Administrative Agentcontrary in the preceding two sentences, as the case may becompletion, by execution and submission of such documentation (other than such documentation set forth in Section 2.13(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Borrowers pursuant Bank’s reasonable judgment such completion, execution or submission would subject such Bank to this Credit Agreement any material unreimbursed cost or otherwise to establish expense or would materially prejudice the legal or commercial position of such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 (or applicable successor form) or such other documentation or information prescribed by applicable Laws Legal Requirements or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and;
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of U.S. withholding tax Tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(II.) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II.) executed originals of Internal Revenue Service Form W-8ECIW-8ECI (or applicable successor form), (III.) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit K-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service IRS Form W-8IMY W-8BEN or IRS Form W-8BEN-E (or applicable successor form); or
(IV.) to the extent a Foreign Bank is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor forms), a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-2 or Exhibit K-3, IRS Form W-9 (or applicable successor form), and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and all one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-4 on behalf of each such direct and indirect partner;
(C) executed originals of any other form prescribed by applicable Legal Requirements as a basis for claiming exemption from or a reduction in United States Federal withholding Tax together with such supplementary documentation as may be prescribed by applicable Legal Requirements to permit the Borrower or the Agent to determine the withholding or deduction required supporting documentation,to be made.
(D) if a payment made to a Recipient under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower or the Agent (as applicable) at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by applicable Legal Requirement (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Recipient agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.
Appears in 1 contract
Samples: Credit Agreement (Stone Energy Corp)
Status of Banks; Tax Documentation. (i) Each Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower Representative, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the case may be, Borrower or the Administrative Agent to determine (A) whether or not payments made hereunder or under any other Credit Document are such Bank is subject to Taxesbackup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 8.4(f)(ii)(A), (Bii)(B) if applicable, the required rate of withholding or deduction, and (Cii)(D) below) shall not be required if in the entitlement Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Bank or the Administrative Agent, as the case may be, by the Borrowers pursuant to this Credit Agreement or otherwise to establish such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes in the United Statesa U.S. Person,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent, and the Administrative Agent shall on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(B) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I1) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Bank claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of Internal Revenue Service IRS Form W-8ECI;
(3) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit J-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (IIIor W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-2 or Exhibit J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals copies of Internal Revenue Service Form W-8IMY any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and all required supporting documentation,the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Samples: Revolving Credit Agreement (Erp Operating LTD Partnership)
Status of Banks; Tax Documentation. (i) Each Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower Representative and to the Administrative Agent, and the Administrative Agent shall deliver to the Borrower RepresentativeAgent, at the time or times prescribed by applicable Laws Law or when reasonably requested by the Borrower Representative or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws Law or reasonably requested by the taxing authorities of any jurisdiction and such other reasonably requested information Borrower or the Agent as will permit the Borrowers or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) the entitlement of such Bank or the Administrative Agent, as the case may be, to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the Administrative Agentcontrary in the preceding two sentences, as the case may becompletion, by execution and submission of such documentation (other than such documentation either set forth in §5.2(e)(ii)(A), (ii)(B) and (ii)(D)) shall not be required if in any Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the Borrowers pursuant to this Credit Agreement legal or otherwise to establish commercial position of such Bank’s status for withholding tax purposes in the applicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if any in the event that the Borrower is resident for tax purposes in the United Statesa U.S. Person,
(A) any Bank that is a U.S. Person shall deliver to the Borrower Representative and the Administrative Agent on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), and executed originals of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the Administrative Agent shall extent it is legally entitled to do so, deliver to the Borrower Representative, executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent, as the case may be, to determine whether or not such Bank or the Administrative Agent, as the case may be, is subject to backup withholding or information reporting requirements; and
(B) each Foreign Bank that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Credit Document shall deliver to the Borrower Representative and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank Lender becomes a Bank under this Credit Agreement (and from time to time thereafter upon the reasonable request of the Borrower Representative or the Administrative Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(I) executed originals in the case of Internal Revenue Service Form W-8BEN a Foreign Lender claiming eligibility for the benefits of an income tax treaty to which the United States is a party,party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of Internal Revenue Service IRS Form W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (IIIx) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service IRS Form W-8IMY W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Bank agrees that if any form or certification it previously delivered pursuant to this §5.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal inability to do so.
(iv) The Borrower shall not be required to pay any amount pursuant to this §5.2 to any Recipient that is a Foreign Lender and that fails to comply with the requirements of this subsection (e). If any such Recipient fails to deliver the above forms or other documentation to the extent required hereunder, then the Borrower may withhold from such payment to such Recipient such amounts as are required by the Code. In the event of any such failure, if any Governmental Authority asserts that the Borrower did not properly withhold or backup withhold, as the case may be, any tax or other amount from payments made to or for the account of such Recipient, such Recipient shall indemnify the Borrower therefor, including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable by or to the Borrower under this §5.2, and costs and expenses (including all fees and disbursements of any law firm or other external counsel and the allocated cost of internal legal services and all required supporting documentation,disbursements of internal counsel) of the Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Properties LTD Partnership)
