TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof or therein) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax is compelled by law. (b) If any deduction or withholding for any tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such tax, provided that no payment of any additional amounts shall be required to be made for or on account of: (i) any tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such tax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to the Taxing Jurisdiction imposing the relevant tax; (ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes; (iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes; (iv) any tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed Forms (as defined below) as are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not result in any confidential and proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(iv) upon the proper completion and submission of such Forms (including refiling or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request; (v) any taxes imposed pursuant to FATCA; or (vi) any combination of clauses (i) through (v) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder. (c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification and returns (collectively, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable tax treaty or (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) shall require any holder to provide information with respect to any such Form or otherwise if such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return information of such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement shall be deemed to be such written request of the Company. (d) On or before the date of any Closing, the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom pursuant to Section 23(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required. (e) If the Company pays an additional amount under this Section 23 to or for the account of any holder of a Note and such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in its reasonable discretion determines that it has received or been granted a refund of such taxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable discretion, determine to be attributable to the relevant taxes or deduction or withholding. Nothing in this Section 23(e) shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax in priority to any other claims, reliefs, credits or deductions available to it or (ii) oblige any holder of any Note to disclose any confidential and proprietary income tax return information of such holder. (f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note. (g) If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax in respect of which the Company would be required to pay any additional amount under this Section 23, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction. (h) [reserved]. (i) The obligations of the Company under this Section 23 shall survive the payment or transfer of any Note and the provisions of this Section 23 shall also apply to successive transferees of the Notes. (j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposes, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person for U.S. federal income tax purposes and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposes, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 shall require any holder to provide information with respect to any Form or otherwise if such information is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA).
Appears in 2 contracts
Samples: Note Purchase Agreement (STERIS PLC), Note Purchase Agreement (STERIS PLC)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company Obligors in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, Applicable Currency free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than in which the United States Obligors (as applicable) are incorporated, organized, managed or controlled or otherwise resides for tax purposes or where a branch or office through which the Obligor (as applicable) are acting for purposes of this Agreement and the Notes is located or from or through which the Obligors (as applicable) are making any payment (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company such Obligor under this Agreement or the Notes, the Company such Obligor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that (A) is imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes as a result of such holder being organized under the laws of, or having its principal office or applicable lending office located in, the Taxing Jurisdiction or (B) would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companyany Obligor, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms Lineage Logistics Note Purchase Agreement would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) any withholding Taxes imposed on an amount payable to or for the account of such holder with respect to the relevant Note pursuant to a law in effect on the date on which such holder acquires the relevant Note, except to the extent that, pursuant to this Section 13, amounts with respect to such Taxes were payable to such holder’s assignor immediately before such holder acquired the relevant Note;
(iv) any Taxes imposed under XXXXX;
(v) any taxes Taxes imposed pursuant to FATCAthe Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) in the form as at the date of this Agreement;
(vi) any Taxes assessed on a holder under the laws of the Netherlands, if and to the extent such Taxes become payable as a result of such holder having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2021 (Wet inkomstenbelasting 2001) in a Dutch Obligor; or
(vivii) any combination of clauses (i) through (vvi) above; provided further that in no event shall the Company any Obligor be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company such Obligor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States or other applicable jurisdiction and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder Lineage Logistics Note Purchase Agreement shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, the Closing the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom applicable Taxing Jurisdiction pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 any payment is made by any Obligor to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by such Obligor pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Obligor such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company an Obligor of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Companysuch Obligor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company an Obligor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Obligor would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company such Obligor will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Companysuch Obligor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved].If an Obligor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above. Lineage Logistics Note Purchase Agreement
(i) The obligations of the Company Obligors under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Obligors to comply with their obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) Obligors to comply with its their obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is Obligors are required to obtain such information under FATCA and, in such event, the Company Obligors shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 2 contracts
Samples: Note Purchase Agreement (Lineage, Inc.), Note Purchase Agreement (Lineage, Inc.)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company Obligors in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, Applicable Currency free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than in which the United States Obligors (as applicable) are incorporated, organized, managed or controlled or otherwise resides for tax purposes or where a branch or office through which the Obligor (as applicable) are acting for purposes of this Agreement and the Notes is located or from or through which the Obligors (as applicable) are making any payment (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company such Obligor under this Agreement or the Notes, the Company such Obligor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:: Lineage Logistics, LLC Note Purchase Agreement
(i) any tax Tax that (A) is imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes as a result of such holder being organized under the laws of, or having its principal office or applicable lending office located in, the Taxing Jurisdiction or (B) would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companyany Obligor, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) any withholding Taxes imposed on an amount payable to or for the account of such holder with respect to the relevant Note pursuant to a law in effect on the date on which such holder acquires the relevant Note, except to the extent that, pursuant to this Section 13, amounts with respect to such Taxes were payable to such holder’s assignor immediately before such holder acquired the relevant Note;
(iv) any Taxes imposed under XXXXX; Lineage Logistics, LLC Note Purchase Agreement
(v) any taxes Taxes imposed pursuant to FATCAthe Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) in the form as at the date of this Agreement;
(vi) any Taxes assessed on a holder under the laws of the Netherlands, if and to the extent such Taxes become payable as a result of such holder having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2021 (Wet inkomstenbelasting 2001) in a Dutch Obligor; or
(vivii) any combination of clauses (i) through (vvi) above; provided further that in no event shall the Company any Obligor be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company such Obligor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States or other applicable jurisdiction and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, the Closing the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom applicable Taxing Jurisdiction pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.. Lineage Logistics, LLC Note Purchase Agreement
(e) If the Company pays an additional amount under this Section 23 any payment is made by any Obligor to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by such Obligor pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Obligor such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company an Obligor of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Companysuch Obligor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company an Obligor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Obligor would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company such Obligor will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Companysuch Obligor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved].If an Obligor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above. Lineage Logistics, LLC Note Purchase Agreement
(i) The obligations of the Company Obligors under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Obligors to comply with their obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) Obligors to comply with its their obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is Obligors are required to obtain such information under FATCA and, in such event, the Company Obligors shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 2 contracts
Samples: Note Purchase Agreement (Lineage, Inc.), Note Purchase Agreement (Lineage, Inc.)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States States54 (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(viiii) any combination of clauses (i) through and (vii) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder [(i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) ii)]55 registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.. 56
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the United States and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, the Closing the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom [__________] pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If the Company makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
Samples: Note Purchase Agreement
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, Euros or Pounds SterlingDollars, as applicable, free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction (other than the United States jurisdiction in which such holder is resident for tax purposes) (a) in which the Company is incorporated, organised, managed or controlled or otherwise resides for tax purposes or (b) where a branch or office through which the Company is acting for purposes of this Agreement is located or from or through which the Company is making any payment (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing JurisdictionJurisdiction of the Company, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the CompanyCompany or its legal counsel) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any extensions, refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), and/or the delay or failure by such holder to take such other reasonably requested actions in order to mitigate the amount of any such Tax, provided that the filing of such Forms and/or the taking of such other actions would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling extensions, refilings or renewals of filings) or taking of such actions as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) for or on account of any estate, inheritance, gift, sale, excise, transfer, personal property or similar tax assessment or other governmental charge;
(iv) to any holder of a Note that is registered in the name of a nominee;
(v) for any taxes Tax imposed pursuant under FATCA;
(vi) with regard to FATCAany holder of a Note to which Section 13(k) applies, for or on account of any Tax that would not have been imposed but for the breach of the holder of any of the Terms and Conditions; or
(vivii) any combination of clauses (i) through ), (ii), (iii), (iv), (v), (vi) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America for purposes of, and fully eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America and the relevant Taxing Jurisdiction Jurisdiction; or (ii) registered resident in the name United States of a nominee if under America who is not entitled pursuant to the law double taxation treaty in effect as of the date of this Agreement between the United States of America, and the relevant Taxing Jurisdiction (or to a full exemption from Tax imposed on any payment made under this Agreement by the current regulatory interpretation of such law) securities held relevant Taxing Jurisdiction and would not be so entitled even if all necessary procedural formalities were completed and all conditions in the name of a nominee do not qualify relevant treaty were satisfied for an such exemption from such Tax at the relevant tax and the Reporting Entity time any payment was made or the Company shall have given timely notice of such law or interpretation due to such holderbe made under this Agreement.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the United States and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of with a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted copy sent to the United States Internal Revenue Service in accordance with the instructions contained in such FormCompany), whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, the Closing the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom Kingdom, as applicable pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If the Company makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential confidential.
(subject k) Any holder of a Note issued by Company who holds a passport under the HMRC DT Treaty Passport Scheme, and which wishes the scheme to apply to this Agreement, shall irrevocably include an indication to that effect by including its scheme reference number and its jurisdiction of tax residence in the Purchaser Schedule (or, in the case of any disclosure requirements required transferee of a Note, in the information provided to the Company pursuant to FATCASection 14.2(a)). Where a holder of a Note has included its HMRC DT Treaty Passport Scheme reference number and its jurisdiction of tax residence in the Purchaser Schedule or in the information provided to the Company pursuant to Section 14.2(a), the Company shall file a duly completed form DTTP2 in respect of such holder with HMRC no later than 30 days prior to the first interest payment date under the Notes (or, in the case of any transferee of a Note, within 30 days of completion of the transfer thereof) and shall provide such holder with a copy of that filing. It shall thereafter be the sole responsibility of the holder of any Note to comply with the Terms and Conditions, including, without limitation, renewing its passport from time to time and notifying HMRC of any material change to its form or circumstances.
(l) Any holder of a Note may deliver a QPP Certificate to the Company and provided that such QPP Certificate has not been withdrawn by the holder of the Note or cancelled by HMRC (unless such withdrawal or cancellation is as a consequence of the failure of the Company to comply with its obligations under regulation 7 of the Income Tax (Qualifying Private Placement Regulations) 2015 (SI 2015/2002)) such holder shall not be required to file any other Form seeking relief in respect of UK Tax pursuant to the applicable double taxation agreement or to provide its HMRC DT Treaty Passport Scheme reference number (and so be non-compliant with the provisions of this Section 13) unless it has failed to file such Form in accordance with the provisions of this Section 13 within the period of 60 days following it being notified of such withdrawal or cancellation and receiving a written request to do so from the Company or their legal counsel.
Appears in 1 contract
Samples: Note Purchase and Guaranty Agreement (Aptargroup Inc)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “"Taxing Jurisdiction”"), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder's reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(viiii) any combination of clauses (i) through and (vii) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in which such Purchaser purchases Notes in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, “together with instructions for completing the same, "Forms”") required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in which such Purchaser purchases Notes and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, each Closing the Company will furnish each Purchaser purchasing Notes at such Closing with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom States or the applicable Taxing Jurisdiction as of the date of such Closing pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable lawApplicable Law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If the Company makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s 's United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s 's status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law Applicable Law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s 's obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement Agreement, the Notes and the Notes other Note Documents will be made by the Company Note Parties in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by thereon or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof or therein) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), with respect thereto unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any Tax imposed by or on behalf of any jurisdiction in which a Note Party is then incorporated or resident for tax purposes or any political subdivision thereof or therein or any jurisdiction from or through which payment is made by or on behalf of a Note Party or any political subdivision thereof or therein (including for avoidance of doubt, so long as any Note Party is treated as a U.S. Person, any political subdivision or taxing authority of or in the United States) (hereinafter a “Taxing Jurisdiction Jurisdiction”), shall at any time be required by law in respect of any amounts to be paid by the Company Note Parties under this Agreement Agreement, the Notes or the Notesother Note Documents, the Company Note Parties will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement Agreement, the Notes or the Notes other Note Documents after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amountAdditional Amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement Agreement, the Notes or the Notes other Note Documents before the assessment of such taxTax, provided that no payment of any additional amounts Additional Amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such a holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident or national thereof, or being or having been incorporated, present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companyany Note Party, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or Agreement, the Notes or any other Note Document are made to to, the Taxing Jurisdiction jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner or beneficial owner (following a written request by the Paying Agent or the Company) and, if applicable, in the accurate filing with the relevant Taxing Jurisdiction in a timely manner such properly completed (or, if relevant, with the jurisdiction of tax residence of the relevant holder or beneficial owner) of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder or beneficial owner to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms, other than Forms required under Section 13(d)(i) or Section 13(d)(ii), would not (in such holder’s reasonable judgment) result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holderholder and, and provided further further, that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (other than Forms required under Section 13(d)(i) or Section 13(d)(ii)), including refiling refilings or renewals of filings) filings of such Forms, as may be specified in a written request of the Reporting Entity Paying Agent or the Company no later than 60 30 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(viii) any taxes Tax imposed pursuant to under FATCA; or
(viiv) any combination of clauses (i) through (viii) above; and provided further that in no event shall the Company any Note Party be obligated to pay such additional amounts Additional Amounts to any holder (i) not resident in by reason of any withholding or deduction for or on account of Tax imposed by the United States of America in excess of Kingdom, if on the amounts date on which the payment falls due, such payment could have been made to the holder without any such withholding or deduction if that the Company would be obligated to pay if such holder had been a resident Qualifying Purchaser (and, in the case of a Treaty Purchaser, if H.M. Revenue and Customs had issued a direction to the relevant Note Party authorizing it to make the relevant payment without withholding or deduction on account of Tax), but on that date that holder is not or has ceased to be a Qualifying Purchaser (other than as a result of any Change in Tax Law after the date it became a holder under this Agreement), (ii) by reason of any withholding or deduction for or on account of Tax imposed by the United States of America for purposes of, and eligible (or any political subdivision thereof) on amounts payable to or for the benefits of, any double taxation treaty from time account of such holder pursuant to time the law in effect between on the United States date on which such holder becomes a holder of America the Note under this Agreement or changes its applicable lending office, (iii) which is not an original Purchaser on the date of Closing, if and to the extent that, as a result of circumstances (including, for the avoidance of doubt, the status of such holder) existing on the date when such holder acquired the relevant Taxing Jurisdiction Notes, such Note Party would, but for this proviso, be obliged to pay Additional Amounts to such holder and such Additional Amounts would exceed the Additional Amounts (if any) which would have been payable by such Note Party to such holder’s assignor pursuant to this Section 13 if the relevant Notes had not been assigned to such holder, or (iiiv) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity Paying Agent or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (b) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification and returns (collectively, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable tax treaty or (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in . In this Section 23(c) shall require any holder to provide information with respect to any such Form or otherwise if such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return information of such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form), whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement shall be deemed to be such written request of the Company.
(d) On or before the date of any Closing, the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom pursuant to Section 23(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 to or for the account of any holder of a Note and such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in its reasonable discretion determines that it has received or been granted a refund of such taxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable discretion, determine to be attributable to the relevant taxes or deduction or withholding. Nothing in this Section 23(e) shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax in priority to any other claims, reliefs, credits or deductions available to it or (ii) oblige any holder of any Note to disclose any confidential and proprietary income tax return information of such holder.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax in respect of which the Company would be required to pay any additional amount under this Section 23, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved].
(i) The obligations of the Company under this Section 23 shall survive the payment or transfer of any Note and the provisions of this Section 23 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposes, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person for U.S. federal income tax purposes and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposes, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 shall require any holder to provide information with respect to any Form or otherwise if such information is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA).13:
Appears in 1 contract
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company and the Parent Issuer in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, Euros free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any applicable jurisdiction other than the United States (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Parent Issuer or the Company under this Agreement or the Notes, the Company Parent Issuer or the Company, as applicable, will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Parent Issuer or the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(viiii) any combination of clauses (i) through and (vii) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder of a Note (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity Company or the Company Parent Issuer, as applicable, all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company or the Parent Issuer, as applicable (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the United States and such Taxing Jurisdiction and (y) provide the Reporting Entity Company or the Company Parent Issuer, as applicable, with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, the Closing the Company or the Parent Issuer, as applicable, will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom The Netherlands pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 or the Parent Issuer, as applicable, to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company or the Parent Issuer pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company or the Parent Issuer, as applicable, such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in -49- respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity Company or the Company Parent Issuer, as applicable, will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company or the Parent Issuer, as applicable, of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the CompanyCompany or the Parent Issuer, as applicable, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company or the Parent Issuer is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company or the Parent Issuer would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company or the Parent Issuer will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the CompanyCompany or the Parent Issuer) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction. Nothwithstanding anything to the contrary contained herein, neither the Company nor the Parent Guarantor shall be required to make any payments to any holder of any Note pursuant to this Section 13(g) relating to any Taxes paid by a holder more than 180 days prior to such holder’s request for any additional payment or compensation pursuant to this Section 13(g).
(h) [reserved]If the Company or the Parent Issuer makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company or the Parent Issuer (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company or the Parent Issuer, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company and the Parent Issuer under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or Company, the CompanyParent Issuer, or to such other Person as may be reasonably requested by the Reporting Entity Company or the CompanyParent Issuer, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity Company or the Company as may be Parent Issuer necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company or the Parent Issuer to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company or the Parent Issuer is required to obtain such information under FATCA and, in such event, the Company and the Parent Issuer shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
Samples: Note Purchase and Guaranty Agreement (Teledyne Technologies Inc)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Eurosand all payments whatsoever under the Notes will be made by the applicable Issuer in the Applicable Currency of such Notes, or Pounds Sterling, as applicable, in each case free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States of America (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company any Issuer under this Agreement or the Notes, the Company such Issuer will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i1) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companyapplicable Issuer, after the date of the Initial ClosingClosing Date, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii2) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(vi3) any combination of clauses (i) through and (vii) above; provided further that in no event shall the Company Issuers be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the Closing Date in excess of the amounts that the Company Issuers would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the United States of America and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 24 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closingfirst Closing with respect to Notes to be issued by the Dutch Subsidiary Issuer, the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom Netherlands pursuant to Section 23(b)(ii24(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 any payment is made by any Issuer to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by such Issuer pursuant to this Section 24, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Issuer such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 24(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company any Issuer of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company any Issuer is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Issuer would be required to pay any additional amount under this Section 2324, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company such Issuer will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If any Issuer makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company Issuers under this Section 23 24 shall survive the payment or transfer of any Note and the provisions of this Section 23 24 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Issuers to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) each Issuer to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 24(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is Issuers are required to obtain such information under FATCA and, in such event, the Company Issuers shall treat any such information they receive as confidential. If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it receives to the Company, whereupon this Agreement shall become a binding agreement between you and the Company. Very truly yours, FRANKLIN ELECTRIC CO., INC. By ____________________________________ Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer FRANKLIN ELECTRIC B.V. By ____________________________________ Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer This Agreement is hereby accepted and agreed to as confidential of the date thereof. NYL INVESTORS LLC By: _____________________________ Name: Title: NEW YORK LIFE INSURANCE COMPANY By: _____________________________ Name: Title: NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION By: NYL INVESTORS LLC, ITS INVESTMENT MANAGER By: _____________________________ Name: Title: NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION INSTITUTIONALLY OWNED LIFE INSURANCE SEPARATE ACCOUNT (subject to any disclosure requirements required pursuant to FATCABOLI 30C) By: _____________________________ Name: Title: COMPSOURCE MUTUAL INSURANCE COMPANY By: _____________________________ Name: Title: THE BANK OF NEW YORK MELLON, A BANKING CORPORATION ORGANIZED UNDER THE LAWS OF NEW YORK, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE UNDER THAT CERTAIN TRUST AGREEMENT DATED AS OF JULY 1ST, 2015 BETWEEN NEW YORK LIFE INSURANCE COMPANY, AS GRANTOR, XXXX XXXXXXX LIFE INSURANCE COMPANY (U.S.A)., AS BENEFICIARY, XXXX XXXXXXX LIFE INSURANCE COMPANY OF NEW YORK, AS BENEFICIARY, AND THE BANK OF NEW YORK MELLON, AS TRUSTEE By: _____________________________ Name: Title: As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
Appears in 1 contract
Samples: Note Purchase and Private Shelf Agreement (Franklin Electric Co Inc)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement Agreement, the Notes and the Notes Multiparty Guaranty will be made by the Company applicable Obligor in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company any Obligor under this Agreement Agreement, the Notes or the NotesMultiparty Guaranty, the Company such Obligor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or Agreement, the Notes and the Multiparty Guaranty after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement Agreement, the Notes or the Notes Multiparty Guaranty before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Company, after the date of the Initial ClosingClosing Date, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement Agreement, the Notes or the Notes Multiparty Guaranty are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions re-filings or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided provided, further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling re-filings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(viiii) any combination of clauses (i) through and (vii) above; provided provided, further that in no event shall the Company any Obligor be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser was resident for tax purposes on the date of the Closing (as defined in the 2017 Note Agreement) in excess of the amounts that the Company such Obligor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company such Obligor shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the The holder of such each Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the United States and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 14.3 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided provided, further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of If any Closing, the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom pursuant to Section 23(b)(ii), if any, and in connection with the transfer of payment is made by any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 Obligor to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by such Obligor pursuant to this Section 14.3, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Obligor such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 14.3(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(fe) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company any Obligor of any tax Tax in respect of any amounts paid under this Agreement Agreement, the Notes or the NotesMultiparty Guaranty, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(gf) If the Company any Obligor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Obligor would be required to pay any additional amount under this Section 2314.3, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then such Obligor or the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by such Obligor or the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(hg) [reserved]If any Obligor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(ih) The obligations of the Company Obligors under this Section 23 14.3 shall survive the payment or transfer of any Note and the provisions of this Section 23 14.3 shall also apply to successive transferees of the Notes.
(ji) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (ia) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company to comply with its obligations under FATCA and (iib) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 14.3(i) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes Guaranty will be made by the Company Guarantors in lawful the relevant currency of the United States of America, Euros, or Pounds Sterling, as applicable, payment free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes tax (whether income, documentary, sales, stamp, registration, issue, capital, property, excise or otherwise), duty, assessment, levy, impost, fee, compulsory loan, charge or withholding (herein “Taxes”) of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company a Guarantor under this Agreement or the NotesGuaranty, the Company such Guarantor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) Holder such additional amounts as may be necessary in order that the net amounts paid to such holder Holder pursuant to the terms of this Agreement or the Notes Guaranty after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder Holder under the terms of this Agreement or the Notes Guaranty before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i1) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder Holder (or a fiduciary, settlor, beneficiaryHolder, member of, shareholder of, or possessor of a power over, such holderHolder, if such holder Holder is an estate, trust, partnership or corporation or any Person other than the holder Holder to whom the Notes or any amount payable thereon hereunder is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or being the beneficiary of this Guaranty or the receipt of payments hereunder or thereunder or in respect hereof or thereof or the exercise of remedies in respect hereof or thereof, including such holder Holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companysuch Guarantor, after the date of the Initial Closingthis Guaranty, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes Guaranty are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii2) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner Holder (following a written request by the Companyany Guarantor) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder Holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such Holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such Holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holderHolder, and provided further that such holder Holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(2) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company any Guarantor no later than 60 days after receipt by such holder Holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(vi3) any combination of clauses (i1) through and (v2) above; provided further that in no event shall the Company any Guarantor be obligated to pay such additional amounts to any holder Holder (i) not resident in the United States or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of America the Closing in excess of the amounts that the Company such Guarantor would be obligated to pay if such holder Holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) whose Note is registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities Securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company such Guarantor shall have given timely notice of such law or interpretation to such holderHolder.
(c) By acceptance of any Notethis Guaranty, the holder of such Note each Holder agrees, subject to the limitations of clause (bb)(2) above, that it will from time to time with reasonable promptness (x1) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company any Guarantor all such forms, certificates, documents, declarations, identification documents and returns provided to such Holder by such Guarantor (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder Holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the United States and such Taxing Jurisdiction and (y2) provide the Reporting Entity or the Company such Guarantor with such information with respect to such holder Holder as the Reporting Entity or the Company such Guarantor may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 7 shall require any holder Holder to provide information with respect to any such Form or otherwise if in the opinion of such Holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holderHolder, and provided further that each such holder Holder shall be deemed to have complied with its obligation under this paragraph Section 7(c) with respect to any Form if such Form shall have been duly completed and delivered by such holder Holder to the Reporting Entity or the Company such Guarantor or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement such Guarantor (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any the Closing, the Company each Guarantor will furnish each Purchaser Holder with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom each relevant Taxing Jurisdiction pursuant to Section 23(b)(ii7(b)(2), if any, and in connection with the transfer of any Note the Company each Guarantor will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 any payment is made by a Guarantor to or for the account of a Holder after deduction for or on account of any holder of a Note Taxes, and increased payments are made by such holder is entitled Guarantor pursuant to a refund of the tax to which this Section 7, then, if such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in Holder at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder Holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Guarantor such amount as such holder Holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note Holder to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note Holder shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 7(b)(2)) oblige any holder of any Note Holder to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company Each Guarantor will furnish the holders of Noteseach Holder, promptly and in any event within 60 days after the date of any payment by the Company such Guarantor of any tax Tax in respect of any amounts paid under this Agreement or the NotesGuaranty, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Companysuch Guarantor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a NoteHolder.
(g) If the Company any Guarantor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Guarantor would be required to pay any additional amount under this Section 237, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Notea Holder, and such holder Holder pays such liability, then the Company such Guarantor will promptly reimburse such holder Holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Companysuch Guarantor) upon demand by such holder Holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If any Guarantor makes payment to or for the account of any Holder and such Holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such Holder shall, as soon as practicable after receiving written request from such Guarantor (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by such Guarantor, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company Guarantors under this Section 23 7 shall survive the payment or transfer of any Note and the provisions of this Section 23 7 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Notethis Guaranty, the holder of such Note each Holder agrees that such holder Holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Companyany Guarantor, or to such other Person as may be reasonably requested by the Reporting Entity or the Companysuch Guarantor, from time to time (i1) in the case of any such holder Holder that is a United States person for federal income tax purposesPerson, such holderHolder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be such Guarantor necessary or appropriate to establish such holderHolder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes such Guarantor to comply with its obligations under FATCA and (ii2) in the case of any such holder Holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) such Guarantor to comply with its obligations under FATCA and to determine that such holder Holder has complied with such holderHolder’s obligations under FATCA, (y) FATCA or to determine the amount (amount, if any) , to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposesHolder. Nothing in this Section 23 7(j) shall require any holder Holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) Holder unless the Company applicable Guarantor is required to obtain such information under FATCA and, in such event, the Company such Guarantor shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
Samples: Note and Guaranty Agreement (Americold Realty Trust)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Company, after the date of the Initial ClosingSigning Date, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(viiii) any combination of clauses (i) through and (vii) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the Signing Date in which such Purchaser purchases Notes in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the Signing Date in which such Purchaser purchases Notes and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, Closing the Company will furnish each Purchaser purchasing Notes at the Closing with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom States or the applicable Taxing Jurisdiction as of the date of the Closing pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 sixty (60) days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable lawApplicable Law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If the Company makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law Applicable Law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company Obligors in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, Applicable Currency free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than in which the United States Obligors (as applicable) are incorporated, organized, managed or controlled or otherwise resides for tax purposes or where a branch or office through which the Obligor (as applicable) are acting for purposes of this Agreement and the Notes is located or from or through which the Obligors (as applicable) are making any payment (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.. Lineage Logistics, LLC Note Purchase Agreement
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company such Obligor under this Agreement or the Notes, the Company such Obligor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that (A) is imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes as a result of such holder being organized under the laws of, or having its principal office or applicable lending office located in, the Taxing Jurisdiction or (B) would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companyany Obligor, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt Lineage Logistics, LLC Note Purchase Agreement by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) any withholding Taxes imposed on an amount payable to or for the account of such holder with respect to the relevant Note pursuant to a law in effect on the date on which such holder acquires the relevant Note, except to the extent that, pursuant to this Section 13, amounts with respect to such Taxes were payable to such holder’s assignor immediately before such holder acquired the relevant Note;
(iv) any Taxes imposed under XXXXX;
(v) any taxes Taxes imposed pursuant to FATCAthe Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) in the form as at the date of this Agreement;
(vi) any Taxes assessed on a holder under the laws of the Netherlands, if and to the extent such Taxes become payable as a result of such holder having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2021 (Wet inkomstenbelasting 2001) in a Dutch Obligor; or
(vivii) any combination of clauses (i) through (vvi) above; provided further that in no event shall the Company any Obligor be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company such Obligor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States or other applicable jurisdiction and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve Lineage Logistics, LLC Note Purchase Agreement the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, the Closing the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom applicable Taxing Jurisdiction pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 any payment is made by any Obligor to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by such Obligor pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Obligor such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company an Obligor of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Companysuch Obligor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company an Obligor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Obligor would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company such Obligor will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or Lineage Logistics, LLC Note Purchase Agreement penalties arise by virtue of a default or delay by the Companysuch Obligor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If an Obligor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company Obligors under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Obligors to comply with their obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) Obligors to comply with its their obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is Obligors are required to obtain such information under FATCA and, in such event, the Company Obligors shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than the United States (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written request;
request (v) any taxes imposed pursuant to FATCAaccompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof); or
(viiii) any combination of clauses (i) through and (vii) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in which such Purchaser purchases Notes in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in which such Purchaser purchases Notes and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any Closing, each Closing the Company will furnish each Purchaser purchasing Notes at such Closing with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom States or the applicable Taxing Jurisdiction as of the date of such Closing pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable lawApplicable Law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If the Company makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Company to comply with its obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law Applicable Law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction (other than the United States or any political subdivision thereof) in which (i) the Company is then incorporated or resident for tax purposes or any jurisdiction from or (ii) through which payment is made by or on behalf of the Company (or, in the case of clauses (i) and (ii), any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.. Waste Connections, Inc. Note Purchase Agreement
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay such additional amounts, as additional interest on the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax of a Taxing Jurisdiction on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder or beneficial owner (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holderholder or beneficial owner, if such holder or beneficial owner is an estate, trust, partnership or corporation or any Person other than the holder or beneficial owner to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder or beneficial owner (or such other Person described in the above parenthetical) being or having been a citizen or resident or national thereof, having been organized under the laws thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to the Taxing Jurisdiction imposing the relevant tax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner or beneficial owner (following a written request by, or by an agent of, the Company) and, if applicable, in the accurate filing with the Company or the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder or beneficial owner to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity of, or an agent of, the Company no later than 60 30 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) any Tax imposed under FATCA; Waste Connections, Inc. Note Purchase Agreement
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(v) any taxes Taxes that are imposed pursuant or withheld as a result of the presentation of the Notes for payment more than 30 days after the relevant payment is first made available for payment to FATCAthe holder or beneficial owners (except to the extent the holder would have been entitled to additional amounts had the note been presented on the last day of such 30 day period);
(vi) any Tax that would not have been imposed if the holder dealt, at the applicable time, at “arm’s length” with the Company, and is not a “specified shareholder” of the Company or a person who does not deal at arm's length, with such a specified shareholder, all within the meaning of the ITA; or
(vivii) any combination of clauses (i) through and (vvi) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or in any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly and accurately complete and deliver in a timely manner to or as reasonably directed by, or by the Reporting Entity or an agent of, the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the jurisdiction of the holder and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company and, if applicable, its agent with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such FormsForms or comply with any backup withholding and information withholding requirements, provided that nothing in this Section 23(c13(c) shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company and, if applicable, its agent or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Company.relevant interest payment date. Waste Connections, Inc. Note Purchase Agreement
(d) On or before the date of any the Closing, the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom Canada pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund refund, relief, remission or repayment of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refundunreasonable delay, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved].If the Company makes payment to or for the account of any holder of a Note, including for the avoidance of doubt, pursuant to Section 13(g) and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above. Waste Connections, Inc. Note Purchase Agreement
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(ji) By acceptance Each holder that is not a United States person as defined in Section 7701(a)(30) of any Note, the holder of such Note Code hereby agrees that such holder will with reasonable promptness duly complete and to deliver to the Reporting Entity Company, on or before the date it becomes a holder under this Agreement and thereafter upon reasonable request of the Company, either a completed and signed IRS Form W-8BEN, W-8BEN-E or to such W-8ECI (or other Person applicable IRS Form W-8 or other successor form, together with applicable attachments), as may be reasonably requested by applicable to it, as required in order to claim the Reporting Entity or the Company, from time to time applicable U.S. withholding exemption.
(iii) in the case of any such Each holder that is a United States person as defined in Section 7701(a)(30) of the Code, agrees to deliver to the Company, on or before the date it becomes a holder under this Agreement and thereafter upon reasonable request of the Company, a completed and signed IRS Form W-9 (or other successor form) certifying that such holder is completely exempt from U.S. federal backup withholding tax.
(iii) Each holder agrees to deliver, on or before the date it becomes a holder under this Agreement and thereafter upon reasonable request of the Company, the applicable tax form or documentation as required in order to claim an exemption from any taxes imposed under FATCA (including, solely for federal income this purpose, any amendments after the date hereof).
(iv) If the holder is not the beneficial owner of the Notes, the representations in Section 6.3 and the covenants set forth in clauses (i) through (iii) above shall apply with respect to the beneficial owners. The holders shall collect the tax purposesdocumentation described above in clauses (i) through (iii) from the beneficial owners and, if the holder is not a United States person as defined in Section 7701(a)(30), forward the beneficial owner tax documentation to the Company along with a completed and signed IRS Form W-8IMY (or other successor form) and, if the holder is a United States person as defined in Section 7701(a)(30), submit a completed and signed IRS Form W-9 for such holder’s United States tax identification number .
(v) Notwithstanding anything to the contrary, (i) neither the Company nor any Subsidiary shall be required to pay any additional amounts or any indemnity or other properly completed Forms payment under this Section 13 or otherwise to or for the account of any holders or beneficial owners for any Taxes resulting from a holder’s or beneficial owner’s breach of Section 6.3 or this Section 13(j), (ii) the holders and beneficial owners hereby severally agree to indemnify the Company (to the extent permitted by applicable law) for any such Taxes imposed on or collected from the Company or any of its Subsidiaries (including Internal Revenue Service Form W-9any such Taxes imposed or collected with respect to any intercompany loan or other financing with or among Subsidiaries of the Company) reasonably requested by the Reporting Entity or resulting from such breach, and (iii) the Company shall be entitled to treat the Notes as may be necessary or appropriate to establish such holder’s status as issued directly by a Subsidiary that is a United States person for U.S. federal income tax purposes and (ii) in the case make any deduction or withholding of any such holder that is not a United States person for U.S. federal income tax purposes, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) accordingly and on the basis of the Codeinformation and documentation to be delivered pursuant to this Section 13(j). Waste Connections, Inc. Note Purchase Agreement
(vi) and such other documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for For the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCAavoidance of doubt, (yi) the references to determine the amount (if any) “Purchaser” in Section 6.3 and references to deduct and withhold from any such payment made to such holder or (z) to establish such “holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing ” in this Section 23 13(j) shall require any holder be read interchangeably and (ii) the terms “holder” and “beneficial owner” in Section 6.3 or this Section 13(j) shall be in reference to provide information with respect to any Form or otherwise if such information is confidential or proprietary to such holder both the holders (in which caseincluding, for the absence avoidance of doubt, no payment any nominees) and beneficial owners of additional amounts by the Company under this Section 23 shall be required to Notes as of the extent the relevant tax would not have been imposeddate of Closing and any subsequent holders and beneficial owners, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)respectively.
Appears in 1 contract
Samples: Master Note Purchase Agreement (Waste Connections, Inc.)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, America free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction (other than the United States or any political subdivision thereof) in which (i) the Company is then incorporated or resident for tax purposes or any jurisdiction from or (ii) through which payment is made by or on behalf of the Company (or, in the case of clauses (i) and (ii), any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company under this Agreement or the Notes, the Company will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay such additional amounts, as additional interest on the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax of a Taxing Jurisdiction on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:
(i) any tax Tax that would not have been imposed but for the existence of any present or former connection between such holder or beneficial owner (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holderholder or beneficial owner, if such holder or beneficial owner is an estate, trust, partnership or corporation or any Person other than the holder or beneficial owner to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder or beneficial owner (or such other Person described in the above parenthetical) being or having been a citizen or resident or national thereof, having been organized under the laws thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein; Waste Connections, provided that this exclusion shall not apply with respect to a tax that would not have been imposed but for the Company, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to the Taxing Jurisdiction imposing the relevant tax;Inc. Note Purchase Agreement
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner or beneficial owner (following a written request by, or by an agent of, the Company) and, if applicable, in the accurate filing with the Company or the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder or beneficial owner to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity of, or an agent of, the Company no later than 60 30 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) any Tax imposed under FATCA;
(iv) any Tax which is payable otherwise than by deduction or withholding from payments made under or with respect to the Notes;
(v) any taxes Taxes that are imposed pursuant or withheld as a result of the presentation of the Notes for payment more than 30 days after the relevant payment is first made available for payment to FATCAthe holder or beneficial owners (except to the extent the holder would have been entitled to additional amounts had the note been presented on the last day of such 30 day period);
(vi) any Tax that would not have been imposed if the holder dealt, at the applicable time, at “arm’s length” with the Company, and is not a “specified shareholder” of the Company or a person who does not deal at arm's length, with such a specified shareholder, all within the meaning of the ITA; or
(vivii) any combination of clauses (i) through and (vvi) above; provided further that in no event shall the Company be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or in any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.. Waste Connections, Inc. Note Purchase Agreement
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly and accurately complete and deliver in a timely manner to or as reasonably directed by, or by the Reporting Entity or an agent of, the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty or between the jurisdiction of the holder and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company and, if applicable, its agent with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such FormsForms or comply with any backup withholding and information withholding requirements, provided that nothing in this Section 23(c13(c) shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company and, if applicable, its agent or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Companyrelevant interest payment date.
(d) On or before the date of any the Closing, the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom Canada pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If any payment is made by the Company pays an additional amount under this Section 23 to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by the Company pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund refund, relief, remission or repayment of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refundunreasonable delay, reimburse to the Company such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holder.affairs or any computations in respect thereof. Waste Connections, Inc. Note Purchase Agreement
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Company, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Company) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If the Company makes payment to or for the account of any holder of a Note, including for the avoidance of doubt, pursuant to Section 13(g) and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(ji) By acceptance Each holder that is not a United States person as defined in Section 7701(a)(30) of any Note, the holder of such Note Code hereby agrees that such holder will with reasonable promptness duly complete and to deliver to the Reporting Entity Company, on or before the date it becomes a holder under this Agreement and thereafter upon reasonable request of the Company, either a completed and signed IRS Form W-8BEN, W-8BEN-E or to such W-8ECI (or other Person applicable IRS Form W-8 or other successor form, together with applicable attachments), as may be reasonably requested by applicable to it, as required in order to claim the Reporting Entity or the Company, from time to time applicable U.S. withholding exemption.
(iii) in the case of any such Each holder that is a United States person as defined in Section 7701(a)(30) of the Code, agrees to deliver to the Company, on or before the date it becomes a holder under this Agreement and thereafter upon reasonable request of the Company, a completed and signed IRS Form W-9 (or other successor form) certifying that such holder is completely exempt from U.S. federal backup withholding tax. Waste Connections, Inc. Note Purchase Agreement
(iii) Each holder agrees to deliver, on or before the date it becomes a holder under this Agreement and thereafter upon reasonable request of the Company, the applicable tax form or documentation as required in order to claim an exemption from any taxes imposed under FATCA (including, solely for federal income this purpose, any amendments after the date hereof).
(iv) If the holder is not the beneficial owner of the Notes, the representations in Section 6.3 and the covenants set forth in clauses (i) through (iii) above shall apply with respect to the beneficial owners. The holders shall collect the tax purposesdocumentation described above in clauses (i) through (iii) from the beneficial owners and, if the holder is not a United States person as defined in Section 7701(a)(30), forward the beneficial owner tax documentation to the Company along with a completed and signed IRS Form W-8IMY (or other successor form) and, if the holder is a United States person as defined in Section 7701(a)(30), submit a completed and signed IRS Form W-9 for such holder’s United States tax identification number .
(v) Notwithstanding anything to the contrary, (i) neither the Company nor any Subsidiary shall be required to pay any additional amounts or any indemnity or other properly completed Forms payment under this Section 13 or otherwise to or for the account of any holders or beneficial owners for any Taxes resulting from a holder’s or beneficial owner’s breach of Section 6.3 or this Section 13(j), (ii) the holders and beneficial owners hereby severally agree to indemnify the Company (to the extent permitted by applicable law) for any such Taxes imposed on or collected from the Company or any of its Subsidiaries (including Internal Revenue Service Form W-9any such Taxes imposed or collected with respect to any intercompany loan or other financing with or among Subsidiaries of the Company) reasonably requested by the Reporting Entity or resulting from such breach, and (iii) the Company shall be entitled to treat the Notes as may be necessary or appropriate to establish such holder’s status as issued directly by a Subsidiary that is a United States person for U.S. federal income tax purposes and (ii) in the case make any deduction or withholding of any such holder that is not a United States person for U.S. federal income tax purposes, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) accordingly and on the basis of the Codeinformation and documentation to be delivered pursuant to this Section 13(j).
(vi) and such other documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for For the Company (x) to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCAavoidance of doubt, (yi) the references to determine the amount (if any) “Purchaser” in Section 6.3 and references to deduct and withhold from any such payment made to such holder or (z) to establish such “holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing ” in this Section 23 13(j) shall require any holder be read interchangeably and (ii) the terms “holder” and “beneficial owner” in Section 6.3 or this Section 13(j) shall be in reference to provide information with respect to any Form or otherwise if such information is confidential or proprietary to such holder both the holders (in which caseincluding, for the absence avoidance of doubt, no payment any nominees) and beneficial owners of additional amounts by the Company under this Section 23 shall be required to Notes as of the extent the relevant tax would not have been imposeddate of Closing and any subsequent holders and beneficial owners, or would have been imposed at a reduced raterespectively. Waste Connections, had the holder provided such information in a timely and proper manner) unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA).Inc. Note Purchase Agreement
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Samples: Master Note Purchase Agreement (Waste Connections, Inc.)
TAX INDEMNIFICATION; FATCA INFORMATION. (a) All payments whatsoever under this Agreement and the Notes will be made by the Company Obligors in lawful currency of the United States of America, Euros, or Pounds Sterling, as applicable, Applicable Currency free and clear of, and without liability for withholding or deduction for or on account of, any present or future taxes Taxes of whatever nature imposed or levied by or on behalf of any jurisdiction other than in which the United States Obligors (as applicable) are incorporated, organized, managed or controlled or otherwise resides for tax purposes or where a branch or office through which the Obligor (as applicable) are acting for purposes of this Agreement and the Notes is located or from or through which the Obligors (as applicable) are making any payment (or any political subdivision or taxing authority thereof of or thereinin such jurisdiction) from or through which payments are made (hereinafter a “Taxing Jurisdiction”), unless the withholding or deduction of such tax Tax is compelled by law.
(b) If any deduction or withholding for any tax Tax of a Taxing Jurisdiction shall at any time be required by law in respect of any amounts to be paid by the Company such Obligor under this Agreement or the Notes, the Company such Obligor will pay to the relevant Taxing Jurisdiction the full amount required to be withheld, deducted or otherwise paid before penalties attach thereto or interest accrues thereon and will pay to each holder of a Note (unless the Company has determined to prepay the Notes in accordance with Section 8.9(a) and received a Rejection Notice in respect of such holder in accordance with Section 8.9(a)) such additional amounts as may be necessary in order that the net amounts paid to such holder pursuant to the terms of this Agreement or the Notes after such deduction, withholding or payment (including any required deduction or withholding of tax Tax on or with respect to such additional amount), shall be not less than the amounts then due and payable to such holder under the terms of this Agreement or the Notes before the assessment of such taxTax, provided that no payment of any additional amounts shall be required to be made for or on account of:: Lineage Logistics Note Purchase Agreement
(i) any tax Tax that (A) is imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes as a result of such holder being organized under the laws of, or having its principal office or applicable lending office located in, the Taxing Jurisdiction or (B) would not have been imposed but for the existence of any present or former connection between such holder (or a fiduciary, settlor, beneficiary, member of, shareholder of, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation or any Person other than the holder to whom the Notes or any amount payable thereon is attributable for the purposes of such taxTax) and the Taxing Jurisdiction, other than the mere holding of the relevant Note or the receipt of payments thereunder or in respect thereof or the exercise of remedies in respect thereof, including such holder (or such other Person described in the above parenthetical) being or having been a citizen or resident thereof, or being or having been present or engaged in trade or business therein or having or having had an establishment, office, fixed base or branch therein, provided that this exclusion shall not apply with respect to a tax Tax that would not have been imposed but for the Companyany Obligor, after the date of the Initial Closing, opening an office in, moving an office to, reincorporating in, or changing the Taxing Jurisdiction from or through which payments on account of this Agreement or the Notes are made to to, the Taxing Jurisdiction imposing the relevant taxTax;
(ii) any estate, inheritance, gift, transfer, sales, excise, personal property, wealth, personal property or similar taxes imposed with respect to the Notes;
(iii) any tax imposed otherwise than by withholding from payments under the Agreement or the Notes;
(iv) any tax Tax that would not have been imposed but for the delay or failure by such holder in delivering to the Company in a timely manner (following a written request by the Company) and, if applicable, in the filing with the relevant Taxing Jurisdiction in a timely manner such properly completed of Forms (as defined below) as that are required or permitted to be so delivered or filed by such holder to avoid or reduce such taxes Taxes (including for such purpose any refilings or resubmissions or renewals of filings or submissions that may from time to time be required by the relevant Taxing Jurisdiction), provided that the filing of such Forms would not (in such holder’s reasonable judgment) impose any unreasonable burden (in time, resources or otherwise) on such holder or result in any confidential and or proprietary income tax return information being revealed, either directly or indirectly, to any Person and such delay or failure could have been lawfully avoided by such holder, and provided further that such holder shall be deemed to have satisfied the requirements of this clause (b)(ivb)(ii) upon the proper good faith completion and submission of such Forms (including refiling refilings or renewals of filings) as may be specified in a written request of the Reporting Entity or the Company no later than 60 days after receipt by such holder of such written requestrequest (accompanied by copies of such Forms and related instructions, if any, all in the English language or with an English translation thereof);
(iii) any withholding Taxes imposed on an amount payable to or for the account of such holder with respect to the relevant Note pursuant to a law in effect on the date on which such holder acquires the relevant Note, except to the extent that, pursuant to this Section 13, amounts with respect to such Taxes were payable to such holder’s assignor immediately before such holder acquired the relevant Note;
(iv) any Taxes imposed under FATCA; Lineage Logistics Note Purchase Agreement
(v) any taxes Taxes imposed pursuant to FATCAthe Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) in the form as at the date of this Agreement;
(vi) any Taxes assessed on a holder under the laws of the Netherlands, if and to the extent such Taxes become payable as a result of such holder having a substantial interest (aanmerkelijk belang) as defined in the Dutch Income Tax Act 2021 (Wet inkomstenbelasting 2001) in a Dutch Obligor; or
(vivii) any combination of clauses (i) through (vvi) above; provided further that in no event shall the Company any Obligor be obligated to pay such additional amounts to any holder (i) not resident in the United States of America or any other jurisdiction in which an original Purchaser is resident for tax purposes on the date of the Closing in excess of the amounts that the Company such Obligor would be obligated to pay if such holder had been a resident of the United States of America or such other jurisdiction, as applicable, for purposes of, and eligible for the benefits of, any double taxation treaty from time to time in effect between the United States of America or such other jurisdiction and the relevant Taxing Jurisdiction or (ii) registered in the name of a nominee if under the law of the relevant Taxing Jurisdiction (or the current regulatory interpretation of such law) securities held in the name of a nominee do not qualify for an exemption from the relevant tax Tax and the Reporting Entity or the Company shall have given timely notice of such law or interpretation to such holder.
(c) By acceptance of any Note, the holder of such Note agrees, subject to the limitations of clause (bb)(ii) above, that it will from time to time with reasonable promptness (x) duly complete and deliver in a timely manner to or as reasonably directed by the Reporting Entity or the Company all such forms, certificates, documents, declarations, identification documents and returns provided to such holder by the Company (collectively, together with instructions for completing the same, “Forms”) required or permitted to be filed or submitted by or on behalf of such holder in order to avoid or reduce any such tax Tax pursuant to the provisions of an applicable statute, regulation or administrative practice of the relevant Taxing Jurisdiction or to claim the benefit of an applicable a tax treaty between the United States or other applicable jurisdiction and such Taxing Jurisdiction and (y) provide the Reporting Entity or the Company with such information with respect to such holder as the Reporting Entity or the Company may reasonably request in order to complete any such Forms, provided that nothing in this Section 23(c) 13 shall require any holder to provide information with respect to any such Form or otherwise if in the opinion of such holder such Form or disclosure of information would involve the disclosure of confidential and proprietary income tax return or other information of that is confidential or proprietary to such holder, and provided further that each such holder shall be deemed to have complied with its obligation under this paragraph with respect to any Form if such Form shall have been duly completed and delivered by such holder to the Reporting Entity or the Company or mailed to the appropriate taxing authority (which in the case of a United Kingdom HM Revenue and Customs Form US-Company 2002 or any similar Form shall be deemed to occur when such Form is submitted to the United States Internal Revenue Service in accordance with the instructions contained in such Form)authority, whichever is applicable, within 60 days following a written request of the Reporting Entity or the Company; provided, further, that this Agreement Company (which request shall be deemed accompanied by copies of such Form and English translations of any such Form not in the English language) and, in the case of a transfer of any Note, at least 90 days prior to be such written request of the Company.relevant interest payment date. Lineage Logistics Note Purchase Agreement
(d) On or before the date of any Closing, the Closing the Company will furnish each Purchaser with copies of the appropriate Form (and English translation if required as aforesaid) currently required to be filed in the United Kingdom applicable Taxing Jurisdiction pursuant to Section 23(b)(ii13(b)(ii), if any, and in connection with the transfer of any Note the Company will furnish the transferee of such Note with copies of any such Form and English translation then required.
(e) If the Company pays an additional amount under this Section 23 any payment is made by any Obligor to or for the account of any the holder of a any Note after deduction for or on account of any Taxes, and increased payments are made by such Obligor pursuant to this Section 13, then, if such holder is entitled to a refund of the tax to which such payment is attributable upon the making of a filing, then such holder shall use reasonable efforts to complete and deliver such refund forms to or as directed by the Reporting Entity or the Company. If such holder in at its reasonable sole discretion determines that it has received or been granted a refund of such taxesTaxes, such holder shall, to the extent that it can do so without prejudice to the retention of the amount of such refund, reimburse to the Company such Obligor such amount as such holder shall, in its reasonable sole discretion, determine to be attributable to the relevant taxes Taxes or deduction or withholding. Nothing in this Section 23(e) herein contained shall (i) interfere with the right of the holder of any Note to arrange its tax affairs in whatever manner it thinks fit and, in particular, no holder of any Note shall be under any obligation to claim relief from its corporate profits or similar tax liability in respect of such tax Tax in priority to any other claims, reliefs, credits or deductions available to it or (iiother than as set forth in Section 13(b)(ii)) oblige any holder of any Note to disclose any confidential and proprietary income information relating to its tax return information of such holderaffairs or any computations in respect thereof.
(f) The Reporting Entity or the Company will furnish the holders of Notes, promptly and in any event within 60 days after the date of any payment by the Company an Obligor of any tax Tax in respect of any amounts paid under this Agreement or the Notes, the original tax receipt issued by the relevant taxation or other authorities involved for all amounts paid as aforesaid (or if such original tax receipt is not available or must legally be kept in the possession of the Companysuch Obligor, a duly certified copy of the original tax receipt or any other reasonably satisfactory evidence of payment), together with such other documentary evidence with respect to such payments as may be reasonably requested from time to time by any holder of a Note.
(g) If the Company an Obligor is required by any applicable law, as modified by the practice of the taxation or other authority of any relevant Taxing Jurisdiction, to make any deduction or withholding of any tax Tax in respect of which the Company such Obligor would be required to pay any additional amount under this Section 2313, but for any reason does not make such deduction or withholding with the result that a liability in respect of such tax Tax is assessed by the relevant Taxing Jurisdiction directly against the holder of any Note, and such holder pays such liability, then the Company such Obligor will promptly reimburse such holder for such payment (including any related interest or penalties to the extent such interest or penalties arise by virtue of a default or delay by the Companysuch Obligor) upon demand by such holder accompanied by an official receipt (or a duly certified copy thereof) issued by the taxation or other authority of the relevant Taxing Jurisdiction.
(h) [reserved]If an Obligor makes payment to or for the account of any holder of a Note and such holder is entitled to a refund of the Tax to which such payment is attributable upon the making of a filing (other than a Form described above), then such holder shall, as soon as Lineage Logistics Note Purchase Agreement practicable after receiving written request from the Company (which shall specify in reasonable detail and supply the refund forms to be filed) use reasonable efforts to complete and deliver such refund forms to or as directed by the Company, subject, however, to the same limitations with respect to Forms as are set forth above.
(i) The obligations of the Company Obligors under this Section 23 13 shall survive the payment or transfer of any Note and the provisions of this Section 23 13 shall also apply to successive transferees of the Notes.
(j) By acceptance of any Note, the holder of such Note agrees that such holder will with reasonable promptness duly complete and deliver to the Reporting Entity or the Company, or to such other Person as may be reasonably requested by the Reporting Entity or the Company, from time to time (i) in the case of any such holder that is a United States person for federal income tax purposesPerson, such holder’s United States tax identification number or other properly completed Forms (including Internal Revenue Service Form W-9) reasonably requested by the Reporting Entity or the Company as may be necessary or appropriate to establish such holder’s status as a United States person Person under FATCA and as may otherwise be necessary for U.S. federal income tax purposes the Obligors to comply with their obligations under FATCA and (ii) in the case of any such holder that is not a United States person for U.S. federal income tax purposesPerson, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such other additional documentation or properly completed Forms (including an appropriate Internal Revenue Service Form W-8, as applicable) as may be necessary or appropriate for the Company (x) Obligors to comply with its their obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA, (y) FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder or (z) to establish such holder’s status as not a United States person for U.S. Federal income tax purposes. Nothing in this Section 23 13(j) shall require any holder to provide information with respect to any Form or otherwise if such information that is confidential or proprietary to such holder (in which case, for the absence of doubt, no payment of additional amounts by the Company under this Section 23 shall be required to the extent the relevant tax would not have been imposed, or would have been imposed at a reduced rate, had the holder provided such information in a timely and proper manner) unless the Company is Obligors are required to obtain such information under FATCA and, in such event, the Company Obligors shall treat any such information it receives as confidential (subject to any disclosure requirements required pursuant to FATCA)confidential.
Appears in 1 contract
