Tax gross-up (i) Each UK Borrower shall make all payments to be made by it under any Loan Document without any Tax Deduction unless a Tax Deduction is required by law.
(ii) A UK Borrower shall, promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify Agent accordingly. Similarly, a Lender shall promptly notify Agent on becoming so aware in respect of a payment payable to that Lender. If Agent receives such notification from a Lender it shall notify the UK Borrowers.
(iii) Subject to Section 16.5(b)(iv), if a Tax Deduction is required by law to be made by a UK Borrower, the amount of the payment due from that UK Borrower shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
(iv) A payment shall not be increased under Section 16.5(b)(iii) above by reason of a Tax Deduction on account of Taxes imposed by the United Kingdom if, on the date on which the payment falls due:
(A) the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or
(B) the relevant Lender is a Qualifying Lender solely by virtue of clause (b) of the definition of Qualifying Lender, and: an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the UK ITA which relates to the payment and that Lender has received from the UK Borrowers making the payment a certified copy of that Direction; the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or
(C) the relevant Lender is a Qualifying Lender solely by virtue of clause (b) of the definition of Qualifying Lender and: the relevant Lender has not given a Tax Confirmation to the UK Borrowers; and the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the UK Borrowers, on the basis that the Tax Confirmation would have enabled the UK Borrowers to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the UK ITA; or
(D) the relevant Lender is a Treaty Lender and the UK Borrowers making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Section 16.5(b)(vii) and Section 16.5(f) below.
(v) If a UK Borrower is required to make a Tax Deduction, that UK Borrower shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
(vi) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the UK Borrowers making that Tax Deduction shall deliver to Agent for the benefit of the Lender entitled to the payment a statement under section 975 of the UK ITA or other evidence reasonably satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
(vii) A Treaty Lender and each UK Borrower which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that UK Borrower to obtain authorization to make that payment without a Tax Deduction and, until such time as the UK Borrowers have obtained authorization (including under the HMRC DT Treaty Passport scheme) to make payments without any Tax Deduction, the UK Borrowers will continue to comply with their obligations under the remaining provisions of this Section 16.5(b).
(viii) Nothing in Section 16.5(b)(vii) above shall require a Treaty Lender to:
(A) register under the HMRC DT Treaty Passport scheme;
(B) apply the HMRC DT Treaty Passport scheme to any advance if it has so registered; or
(C) file Treaty forms if it has given a confirmation to the effect that it wishes the HMRC DT Treaty Passport Scheme to apply to this Agreement in accordance with Section 16.5(b)(xi) or Section 16.5(f)(i) (HMRC DT Treaty Passport scheme confirmation) and the UK Borrowers making that payment has not complied with its obligations under Section 16.5(b)(xii) or Section 16.5(f)(ii) (HMRC DT Treaty Passport scheme confirmation).
(ix) A UK Non-Bank Lender which becomes a party on the day on which this Agreement is entered into gives a Tax Confirmation to the UK Borrowers by entering into this Agreement.
(x) A UK Non-Bank Lender shall promptly notify the UK Borrowers and Agent if there is any change in the position from that set out in the Tax Confirmation.
(xi) A Treaty Lender which becomes a party on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall give a confirmation to that effect (for the benefit of Agent and without liability to any UK Borrower) by notifying the Administrative Borrowers of its scheme reference number and its jurisdiction of tax residence.
(xii) Where a Lender notifies the Administrative Borrowers as described in Section 16.5(b)(xi) above, each UK Borrower shall file a duly completed form DTTP2 in respect of such Lender with HM Revenue & Customs within 30 days of the date of this Agreement and shall promptly provide the Lender with a copy of that filing.
(xiii) Where a Lender has notified the Administrative Borrowers as described in Section 16.5(b)(xi) and a UK Borrower which has complied with its obligations under Section 16.5(b)(xii) has filed a duly completed form DTTP2 but that form DTTP2 has been rejected by H.M. Revenue & Customs or H.M. Revenue & Customs has not given the UK Borrowers authority to make payments to that Lender without a Tax Deduction within 60 days of the date of filing the form DTTP2, the UK Borrowers shall notify the Lender in writing and the Lender shall co-operate in completing any additional procedural formalities necessary for that UK Borrower to obtain authorization to make a payment without a Tax Deduction.
(xiv) If a Lender has not given a confirmation to the effect that it wishes the HMRC DT Treaty Passport scheme to apply to this Agreement in accordance with Section 16.5(b)(xi) above or Section 16.5(f)(i), no UK Borrower shall file any form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s advance or its participation in any advance, unless the Lender agrees otherwise.
