Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement Date, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River: (i) all Returns required to be filed by or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns; (ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return; (iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled; (iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015; (v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction; (vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and (vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Time.
Appears in 2 contracts
Samples: Arrangement Agreement (Baytex Energy Corp.), Arrangement Agreement (Baytex Energy Corp.)
Taxes, Etc. Except as disclosed in writing to Baytex prior All payments made by the Borrower to the Agreement DateLender under this Debenture shall be made free and clear of, and without deduction for or on account of, any Taxes now or hereafter imposed by any official body in any jurisdiction. If any Taxes are required to be withheld or deducted from any amounts payable by the Borrower to the extent that any matter referred to in this subparagraph does notLender hereunder, and would not reasonably be expected to, have a material adverse effect on Raging Riverthe Borrower shall:
(ia) all Returns required to be filed within the time period for payment permitted by or on behalf of Raging River for periods ended on and prior Applicable Law, pay to the Agreement Date appropriate governmental body the full amount of such Taxes and any additional Taxes in respect of the payment required under Section 9.1(b) hereof and make such reports and filings in connection therewith in the manner required by Applicable Law; and
(b) pay to the Lender an additional amount which (after deduction of all Taxes incurred by reason of the payment or receipt of such additional amount) will be sufficient to yield to the Lender the full amount which would have been duly filed on received by it had no deduction or withholding been made. Upon the request of the Lender, the Borrower shall furnish to the Lender the original or a timely basis and certified copy of a receipt for (or other satisfactory evidence as to) the payment of each of the Taxes (if any) payable in respect of such tax returns are complete and correct in all material respectspayment. All If the Lender receives a refund of any Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;
(ii) Raging River which the Borrower has paid or has withheld and remitted any additional amount under this Section 9.1, the Lender shall pay over such refund to the appropriate Taxing Authority all Taxes, including any instalments Borrower. Nothing herein is intended to require payment by the Borrower to or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing Lender in respect of any period subsequent to Taxes payable by the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements Lender in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entitieson the Lenders’ own income, in all cases in respect of tax years ended on capital, capital gains, dividends, or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement other earnings realized pursuant to which Raging River is a party as a result payments made pursuant to the terms of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeDebenture.
Appears in 2 contracts
Samples: Senior Unsecured Convertible Debenture (Lifezone Metals LTD), Senior Unsecured Convertible Debenture (Lifezone Metals LTD)
Taxes, Etc. Except All payments made by the Company hereunder will be made without setoff, counterclaim or other defense. All such payments shall be made free and clear of and without deduction for any present or future income, stamp or other taxes, levies, imposts, deductions, charges, fees, withholding, restrictions or conditions of any nature now or hereafter imposed, levied, collected, withheld or assessed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities, excluding taxes on the overall net income of the Holder (such non-excluded taxes are hereinafter collectively referred to as disclosed the "Taxes"). If the Company shall be required by law to deduct or to withhold any Taxes from or in writing to Baytex prior to respect of any amount payable hereunder, (i) the Agreement Date, or amount so payable shall be increased to the extent necessary so that any matter referred to in this subparagraph does not, after making all required deductions and would not reasonably be expected to, have a material adverse effect withholdings (including Taxes on Raging River:
(i) all Returns required to be filed by or on behalf of Raging River for periods ended on and prior amounts payable to the Agreement Date Holder pursuant to this sentence) the Holder receives an amount equal to the sum it would have received had no such deductions or withholdings been duly filed on a timely basis made, (ii) the Company shall make such deductions or withholdings and such tax returns are complete and correct (iii) the Company shall pay the full amount deducted or withheld to the relevant taxation authority in all material respectsaccordance with applicable law. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Whenever any Taxes are payable by Raging River with respect the Company, as promptly as possible thereafter the Company shall send the Holder an official receipt showing payment. In addition, the Company agrees to items pay any present or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicablecharges or similar levies which arise from any payment made hereunder or from the execution, that have not been paiddelivery, whether performance, recordation or not shown filing of, or otherwise with respect to, this Note or any other Document (hereinafter referred to as being due on any Return"Other Taxes"). Raging River hasThe Company will indemnify the Holder for the full amount of Taxes or Other Taxes (including, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent or Other Taxes on amounts payable to the period covered Holder under this paragraph) paid by such financial statementsthe Holder and any liability (including penalties, whether interest and expenses) arising therefrom or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytexthereto, to upon written demand by the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeHolder therefor.
Appears in 2 contracts
Samples: Convertible Note (Paradise Music & Entertainment Inc), Convertible Note Agreement (NTN Communications Inc)
Taxes, Etc. Except as disclosed in writing to Baytex prior All payments made by the Borrower to the Agreement DateLender under this Debenture shall be made free and clear of, and without deduction for or on account of, any withholding Taxes now or hereafter imposed by any official body in any jurisdiction. If any such withholding Taxes are required to be withheld or deducted from any amounts payable by the Borrower to the extent that any matter referred to in this subparagraph does notLender hereunder, and would not reasonably be expected to, have a material adverse effect on Raging Riverthe Borrower shall:
(ia) all Returns required to be filed within the time period for payment permitted by or on behalf of Raging River for periods ended on and prior applicable law, pay to the Agreement Date appropriate governmental body the full amount of such withholding Taxes and any additional Taxes in respect of the payment required under Section 8.1(b) hereof and make such reports and filings in connection therewith in the manner required by applicable law; and
(b) pay to the Lender an additional amount which (after deduction of all withholding Taxes incurred by reason of the payment or receipt of such additional amount) will be sufficient to yield to the Lender the full amount which would have been duly filed on received by it had no deduction or withholding been made. Upon the request of the Lender, the Borrower shall furnish to the Lender the original or a timely basis and certified copy of a receipt for (or other satisfactory evidence as to) the payment of each of the withholding Taxes (if any) payable in respect of such tax returns are complete and correct in all material respectspayment. All If the Lender receives a refund of any withholding Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;
(ii) Raging River which the Borrower has paid or has withheld and remitted any additional amount under this Section 8.1, the Lender shall pay over such refund to the appropriate Taxing Authority all Taxes, including any instalments Borrower. Nothing herein is intended to require payment by the Borrower to or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing Lender in respect of any period subsequent to Taxes payable by the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements Lender in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entitieson the Lenders’ own income, in all cases in respect of tax years ended on capital, capital gains, dividends, or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement other earnings realized pursuant to which Raging River is a party as a result payments made pursuant to the terms of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeDebenture.
Appears in 1 contract
Taxes, Etc. Except as disclosed in writing to Baytex prior (a) All payments made by the Company to the Agent, any Bank, any Assignee or any Participant under this Agreement Date, and the Committed Notes shall be made without any set off or counterclaim and free and clear of and without deduction for or on account of any present or future Covered Taxes (except to the extent that such withholding or deduction is compelled by law). If the Company is compelled by law to make any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging Riversuch deductions or withholdings of any Taxes it will:
(i) all Returns pay to the relevant authorities the full amount required to be filed by so withheld or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;deducted,
(ii) Raging River has paid pay such additional amounts as may be necessary in order that the net amount received by the Agent, each Bank, each Assignee and each Participant after such deductions or has withheld and remitted withholdings for Covered Taxes (including any required deductions or withholdings of Covered Taxes on such additional amounts) shall equal the amount such payee would have received had no such deductions or withholdings been made, and
(iii) promptly forward to the appropriate Taxing Authority all Agent (for delivery to such payee) an official receipt or other documentation satisfactory to the Agent evidencing such payment to such authorities. Moreover, if any Covered Taxes are directly asserted against the Agent, any Bank, any Assignee or any Participant, such payee may pay such Covered Taxes, and, upon receipt of an official receipt or other reasonably satisfactory documentation evidencing such payment, the Company shall promptly pay such additional amount (including, without limitation, any reasonable expenses with respect thereto) as may be necessary in order that the net amount received by such payee after the payment of such Covered Taxes (including any instalments Covered Taxes on such additional amounts) shall equal the amount such payee would have received had no such Covered Taxes been asserted (provided, that, the Agent, the Banks, and any Assignee or prepayments Participant shall use reasonable efforts, to the extent consistent with applicable laws and regulations, to minimize to the extent possible any material amounts of Taxessuch Covered Taxes if they can do so without material cost or legal or regulatory disadvantage). For purposes of this Section 5.4, a distribution hereunder by the Agent or any Bank to or for the account of any Bank, Assignee or Participant shall be deemed to be a payment by the Company. The Company’s agreement under this Section 5.4 shall survive repayment of the Committed Loans, cancellation of the Committed Notes or any termination of this Agreement.
(b) In consideration of, and as a condition to, the Company’s undertakings in Section 5.4(a), each Bank other than a Bank that are due is organized and payable existing under the laws of the United States of America or any State thereof or the District of Columbia (a “Non-U.S. Bank”) agrees to execute and deliver to the Agent and the Company, on or prior to the date on which such Non-U.S. Bank becomes a Bank under this Agreement, and at the time or times reasonably requested by the Company or the Agent (i) to the extent it acts for its own account with respect to any portion of any sums paid or payable to such Non-U.S. Bank under this Agreement, two original copies of IRS Forms W-0XXX, X-0XXX xr W-8EXP (or any successor forms), as appropriate, properly completed and duly executed by such Non-U.S. Bank, and, in the case of a Non-U.S. Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate substantially in the form of Exhibit H to the effect that such Non-U.S. Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”), claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, (ii) to the extent it does not act or has ceased to act for its own account with respect to any portion of any sums paid or payable to such Bank under this Agreement Date (for example, in the case of a typical participation by such Non-U.S. Bank or where such Non-U.S. Bank is a partnership), (1) for the portion of any such sums paid or payable with respect to which such Non-U.S. Bank acts for its own account, two original copies of the forms or statements required to be provided by such Non-U.S. Bank under subsection (i) of this Section 5.4(b), properly completed and duly executed by such Non-U.S. Bank and claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, and (2) for the portion of any such sums paid or payable with respect to which such Non-U.S. Bank does not act or has ceased to act for its own account, two original copies of IRS Form W-8IMY (or any successor forms), properly completed and duly executed by such Non-U.S. Bank, together with IRS Form W-8BEN, IRS Form W-8ECI, IRS Form W-8EXP (or any successor forms), a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable, provided, that if the Non-U.S. Bank is a partnership and one or more direct or indirect partners of such Non-U.S. Bank are claiming the portfolio interest exemption, such Non-U.S. Bank may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner, (iii) any other properly completed and duly executed form or forms reasonably requested by the Company or the Agent as a basis for claiming complete exemption from (or a reduced rate of) withholding and deduction of Taxes, together with such supplementary documentation reasonably requested by the Company or the Agent to permit the Company or the Agent to determine the withholding (including backup withholding) or deduction required to be made and whether such Non-U.S. Bank is subject to information reporting requirements.
(c) Each Bank that is organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (a “U.S. Bank”) agrees to execute and deliver to the Agent and the Company, on or before the date of this Agreement or on or before the date such Bank becomes a Bank hereunder (and from time to time thereafter upon the reasonable request of the Company or the Agent) a copy of IRS Form W-9 (or any successor forms) properly completed and duly executed by such U.S. Bank, and claiming that it is organized and existing under the laws of the United States of America or any State thereof or such other documentation or information prescribed by applicable law or reasonably requested by the Company or the Agent as will enable the Company or the Agent, as the case may be, to determine whether or not shown such U.S. Bank is subject to backup withholding or information reporting requirements.
(d) If a payment made to a Non-U.S. Bank under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Non-U.S. Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as being due on any Returnapplicable), or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in such Non-U.S. Bank shall deliver to the Raging River Financial Statements Company and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Agent as may be necessary for the period covered Company and the Agent to comply with their obligations under FATCA and to determine that such Non-U.S. Bank has complied with such Non-U.S. Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
(e) Each Bank hereby agrees, from time to time after the initial delivery by such financial statements for Bank of any Taxesforms or other information pursuant to Section 5.4(b) or 5.4(c), including income taxes whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence so delivered obsolete or inaccurate in any material respect, that such Bank shall promptly (and related future taxesin all events, prior to the next applicable payment date), deliver to the Agent and the Company two original copies of any renewal, amendment or additional or successor forms, properly completed and duly executed, together with any other certificate or statement of exemption required by applicable law or regulation in order to confirm or establish such Bank’s complete exemption from (or entitlement to a reduced rate of) withholding and deduction of United States Federal Taxes with respect to payments to such Bank under this Agreement, (ii) if applicable, in the case of a change in law after the date on which such Bank became a Bank hereunder that have not been paidresults in a withholding or deduction of United States Federal Taxes on payments hereunder to such Bank, whether or not shown establish the status of such Bank as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records other than a United States person for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to BaytexUnited States Federal tax purposes and, to the extent entitled under an applicable treaty or other law, claim the benefit of an exemption or a reduced rate of withholding and deduction of United States Federal Taxes with respect to any such payments under an applicable tax treaty of the United States, and/or (iii) if applicable, confirm or establish that such Bank does not act for its own account with respect to any portion of any such payments.
(f) If the Company determines in good faith that a reasonable basis exists for contesting a Covered Tax with respect to which the Company has paid an additional amount under this Section 5.4, the Agent and the Banks, as applicable, shall, subject to Section 5.4(g), cooperate with the Company in challenging such Covered Tax at the Company’s expense if requested by Baytexthe Company (it being understood and agreed that neither the Agent nor any Bank shall have any obligation to contest, true and complete copies of: or any responsibility for contesting, any Tax). If the Agent or a Bank has actual knowledge that it is entitled to receive a refund (Awhether by way of a direct payment or by clearly identifiable offset to an amount otherwise owed to the relevant taxing authority) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect Covered Tax with respect to Taxes which the Company has paid an additional amount under this Section 5.4, it shall promptly notify the Company of the availability of such refund (unless it was made aware of such refund by the Company) and shall, within 30 days after the receipt of a request from the Company, apply for such refund at the Company’s expense. If the Agent or Returns any Bank receives a refund (whether by way of Raging Rivera direct payment or by clearly identifiable offset to an amount otherwise owed to the relevant taxing authority) of any Covered Tax with respect to which the Company has paid an additional amount under this Section 5.4 which, in the reasonable good faith judgment of the Agent or such Bank, as the case may be, is allocable to such payment made under this Section 5.4, the amount of such refund (together with any interest received thereon) shall be paid to the Company, but only to the extent of the additional amounts received from the Company, provided, that, in the case of a Covered Tax the Company was required to deduct and withhold under this Section 5.4, the Company deducted and withheld such Covered Tax in full as and when required pursuant to this Section 5.4, provided, further, that if all or any portion of such refund subsequently becomes unavailable or must be returned, the Company shall repay to the Agent or Bank that paid over such refund to the Company an amount equal to any portion of the refund that must be returned, plus any interest, penalties or other charges imposed with respect thereto.
(g) Notwithstanding any other provision of paragraphs (b), (c), (d) or (e) of this Section 5.4, an Agent or Bank shall not be required to deliver any form that such Agent or Bank is not legally able to deliver. No audit Nothing contained in this Section 5.4 shall require any Agent, Bank, Assignee or Participant to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Company or any other Person.
(h) Each Bank will, at the Company’s request, designate a different Funding Office if such designation will avoid the need for, or reduce the amount of, amounts required to be paid by Taxing Authorities the Company under this Section 5.4 and will not, in such Bank’s sole discretion, be otherwise disadvantageous to such Bank.
(i) The applicable Bank, acting solely for this purpose as a non-fiduciary agent of Raging River the Company (solely for tax purposes), shall maintain a register on which it enters the name and address of each Participant, and the principal amounts (and stated interest) of each such Participant’s interest in such Bank’s rights and/or obligations under this Agreement (the “Participant Register”); provided, that, no Bank shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Committed Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Committed Loan or other obligation is in process or to registered form under Section 5f.103-1(c) of the knowledge United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timeapplicable rights and/or obligations of such Bank under this Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (International Lease Finance Corp)
Taxes, Etc. Except In addition to the payment of Basic Rent hereunder, the Tenant shall promptly discharge and pay when due (subject to the right of contestation as disclosed hereinafter mentioned but including any fine, penalty, interest or cost which may be added thereto) all taxes, rates, duties, assessments and other public charges which during the Term may be levied, rated, charged or assessed against the Demised Premises and the Building or any property owned or brought thereon by the Tenant; and every tax, licence fee, business tax and other public charge (except, however, any income, capital or profits taxes imposed on or against the Landlord) together with interest and/or penalties thereon which, during the Term, may be assessed, levied or charged in writing respect of the occupancy of the Demised Premises and the Building by the Tenant, or any businesses carried on therein by the Tenant, or the property of the Tenant thereon whether such taxes, rates, assessments, licence fees and other public charges are assessed, levied or charged by municipal, provincial, federal, school or other public body. If the Tenant shall fail to Baytex pay any such amount or amounts when due, the Landlord may, at its option, pay the same and an amount equal to the amount so paid, together with interest thereon computed at the rate of interest set out in paragraph 5 of this Lease from the date of payment by the Landlord, shall be charged to and paid by the Tenant as Additional Rent. The Tenant shall, forthwith after payment of the foregoing items and charges, produce to the Landlord on request evidence satisfactory to the Landlord of the fact of such payment; provided, however, that:
(a) if by law any tax, rate, duty, assessment, fee or charge, at the option of the taxpayer, may be paid by instalments (whether or not interest shall accrue on the unpaid balance thereof), the Tenant may pay the sum in instalments as the same respectively become due;
(b) the Tenant shall only be required to pay a proportionate part of any such tax, rate, duty, assessment, fee or charge which relates to a fiscal period of the taxing authority a part of which period is included in a period prior to the Agreement Date, commencement or to after the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
(i) all Returns required to be filed by or on behalf expiration of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such ReturnsTerm;
(iic) Raging River has paid or has withheld and remitted the Tenant may, upon written notice to the appropriate Taxing Authority all TaxesLandlord and after paying such tax, including any instalments rate, assessment or prepayments other public charge under protest, contest the validity or the amount thereof (if meanwhile such contestation will involve no forfeiture, foreclosure, escheat, sale or termination of Taxes, that are due and payable on or prior the Landlord's title to the Agreement Date whether Demised Premises and the Building or not shown as being due on any Returnpart thereof), orbut upon a final determination of any such contest the Tenant shall immediately pay and satisfy all proper costs, where payment is not yet duepenalties, Raging River has established adequate accruals interest or other charges payable in conformity with GAAP connection therewith. The Landlord shall co-operate in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes institution and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect prosecution of any period subsequent such proceedings and will execute any documents required therefor, and the expense of such proceedings including Landlord's costs shall be borne by the Tenant and any refunds or rebates secured relative to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, occupancy shall belong to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeTenant.
Appears in 1 contract
Samples: Single Tenant Industrial Lease (Barringer Technologies Inc)
Taxes, Etc. Except as disclosed in writing The Borrower will pay and discharge, and cause each of its Subsidiaries to Baytex pay and discharge, all taxes, assessments and governmental charges or levies imposed upon it or them, or upon its or their income or profits, or upon any properties belonging to it or them, prior to the Agreement Datedate on which penalties or interest would attach thereto, and all lawful claims which, if unpaid, might become a Lien upon any properties of the Borrower or any of its Subsidiaries; provided that neither the Borrower nor any of its Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings which serve as a matter of law to stay the enforcement of any remedy of the taxing authority or claimant and as to which the Borrower or the Subsidiary concerned shall have set aside on its books adequate reserves. The Borrower will pay, and will cause each of its Subsidiaries to pay, in a timely manner, all lease obligations, all trade debt, purchase money obligations, equipment lease obligations and all of its other Indebtedness; provided that neither the Borrower nor any of its Subsidiaries shall be required to pay any such obligation or indebtedness which is being contested in good faith and as to which the Borrower or the Subsidiary concerned shall have set aside on its books adequate reserves. The Borrower will fully, faithfully and punctually perform and observe all covenants and agreements under any leases of real estate, agreements relating to purchase money debt, equipment leases and other material contracts. The Borrower will fully, faithfully and punctually perform and observe all covenants and agreements under notes and other agreements evidencing or relating to Subordinated Debt; provided that to the extent that any matter referred such agreements conflict with the provisions of agreements in favor of the Bank relating to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
(i) all Returns required to be filed by or on behalf of Raging River for periods ended on and prior subordination thereof to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted Borrower"s obligations to the appropriate Taxing Authority all TaxesBank, including any instalments or prepayments of Taxes, that are due the Borrower will perform and payable on or prior to observe the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timelatter.
Appears in 1 contract
Samples: Revolving and Term Loan Agreement (CTC Communications Corp)
Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement DateDisclosure Letter, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
Pengrowth: (i) all material Returns required to be filed by or on behalf of Raging River Pengrowth for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River Pengrowth with respect to items or periods covered by such Returns;
; (ii) Raging River Pengrowth has paid or has withheld and remitted to the appropriate Taxing Authority on a timely basis all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Tax Return, or, where payment is not yet due, Raging River Pengrowth has established adequate accruals in conformity with GAAP IFRS in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Tax Return. Raging River Pengrowth has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Tax Return;
; (iii) no written claim has been made by any Governmental Authority in a jurisdiction where Pengrowth does not file Tax Returns that Pengrowth is or may be subject to Tax by that jurisdiction; (iv) there are no Encumbrances, other than the Permitted Encumbrances, with respect to Taxes upon any of the assets of Pengrowth; (v) no material deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries Pengrowth that have not yet been settled;
; (ivvi) Pengrowth has made available to BaytexCona, to the extent requested by BaytexCona, true and complete copies of: (A) material income tax audit reports, statements statement of deficiencies, notices of assessment and notices of reassessment of Raging RiverPengrowth, material closing or other agreements in respect received by Pengrowth or on behalf of Taxes of Raging RiverPengrowth relating to Taxes; and (B) any material all income tax returns Returns for Raging River Pengrowth including all predecessor entities, in all cases in respect of tax taxable years ended on or after December 31, 2015;
2012; (vvii) no liability (or reasonable claim of liability) shall arise under any tax sharingExcept as disclosed in the Disclosure Letter, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River Pengrowth is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging RiverPengrowth, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River Pengrowth or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging RiverPengrowth. No audit by Taxing Authorities of Raging River Pengrowth is in process or to the knowledge of Raging RiverPengrowth, pending; and
(viiviii) Raging River Pengrowth's tax pools as at September 30, 2019 were accurately disclosed in the Disclosure Letter. Except as disclosed in the Disclosure Letter, such tax pools have not materially and adversely changed since September 30, 2019; (ix) Pengrowth has not entered into any agreements or made any covenants with any parties with respect to the issuance of "flow-through shares" (as defined in the Tax Act) or the incurring and renunciation of "Canadian exploration expense" or "Canadian development expense" (each as defined in the Tax Act), which amounts have not been fully expended and renounced as required thereunder; (x) Pengrowth has not, at any time, directly or indirectly transferred any property to or supplied any services to, or acquired any property or services from, a Person with whom it was not dealing at arm's length (within the meaning of the Tax Act) for consideration other than consideration equal to the fair market value of the property or services at the time of the transfer, supply or acquisition of the property or services; (xi) Pengrowth has not, at any time, directly or indirectly, transferred any property or supplied any services to, acquired any property or services from, a Person who is not resident in Canada for purposes of the Tax Act and with whom Pengrowth was not dealing at arm's length (within the meaning of the Tax Act) for consideration other than consideration equal to the fair market value of such property or services at the time of transfer, supply or acquisition, as the case may be, nor has Pengrowth been deemed to have done so for purposes of the Tax Act; and Pengrowth has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act, and there are no transactions to which subsection 247(2) or subsection 247(3) of the Tax Act may reasonably be expected to apply; (xii) there are no circumstances existing which could result in the application of section 78 or sections 80 to 80.04 of the Tax Act, or any equivalent provision under provincial Applicable Law, to Pengrowth. Other than in the ordinary course, Pengrowth has not claimed nor will it claim any reserve under any provision of the Tax Act or any equivalent provincial provision, if any amount could be included in the income of Pengrowth for any period ending after the Effective Time; (xiii) Pengrowth is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after agreement. Pengrowth has no liability for the Effective TimeTaxes of any other Person under any applicable legislation, as a transferee or successor, by contract or otherwise; and (xiv) for purposes of the Tax Act, Pengrowth is resident in, and is not a non-resident of Canada and is a "taxable Canadian corporation".
Appears in 1 contract
Taxes, Etc. Except Borrower hereby covenants that all payments by Borrower to BofA in respect of any Obligation, shall be made without any set-off or counterclaim, and free and clear of and without deduction or withholding for or on account of, any present or future Taxes now or hereafter imposed on Borrower or BofA (as disclosed in writing applicable) with respect to Baytex prior to the Agreement Datesuch payments by any governmental or other authority, or except to the extent that such deduction or withholding is compelled by applicable laws, rules or regulations. As used herein, the term "Taxes" shall include all excise and other taxes of whatever nature imposed on Borrower or BofA (as applicable) with respect to such payments (other than taxes generally assessed on the overall net income of BofA imposed by the jurisdiction in which BofA's principal executive office is located), as well as all levies, imposts, duties, charges or fees of whatever nature. If Borrower is compelled by applicable laws, rules or regulations to make any matter referred to in this subparagraph does notsuch deduction or withholding, and would not reasonably be expected to, have a material adverse effect on Raging RiverBorrower will:
(ia) all Returns pay to the relevant authorities the full amount required to be filed so withheld or deducted;
(b) pay to BofA such additional amounts as may be necessary in order that the net amount received by BofA, after such deduction or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable withholding (including any required deduction or withholding on such Returns additional amounts) shall equal the amount BofA would have received had no such deduction or on subsequent assessments with respect thereto have withholding been paid in full on a timely basismade; and
(c) promptly forward to BofA an official receipt or other documentation satisfactory to BofA evidencing such payment to such authorities. Moreover, and no other if any Taxes are payable by Raging River directly asserted against BofA with respect to items or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent Obligation, BofA may pay such Taxes, and Borrower agrees promptly to pay such additional amount (including, without limitation, any penalties, interest or expenses) as may be necessary in order that the period covered net amount received by BofA after the payment of such financial statements, whether or not shown as being due taxes (including any Taxes on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liabilitysuch additional amount) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to equal the knowledge of Raging River, has amount BofA would have received had no such an event Taxes been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timeasserted.
Appears in 1 contract
Samples: Contingent Multicurrency Note Purchase Commitment Agreement (Storage Technology Corp)
Taxes, Etc. Except as disclosed in writing to Baytex on or prior to the Agreement Date, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging RiverBellatrix:
(i) all Tax Returns required to be filed by or on behalf of Raging River Bellatrix for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns Tax Returns are complete and correct in all material respects. All material Taxes shown to be payable on such Tax Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other material Taxes are payable by Raging River Bellatrix with respect to items or periods covered by such Tax Returns;
(ii) Raging River Bellatrix has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Tax Return, or, where payment is not yet due, Raging River Bellatrix has established adequate accruals in conformity with GAAP in the Raging River Bellatrix Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Tax Return. Raging River Bellatrix has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Tax Return;
(iii) no material deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries Bellatrix that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) no material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of material liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River Bellatrix is a party as a result of this transaction;
(viv) Raging River Bellatrix is not a party to any action or proceeding for assessment or collection of a material amount of Taxes, nor, to the knowledge of Raging RiverBellatrix, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River Bellatrix or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to material Taxes or material Tax Returns of Raging RiverBellatrix or its subsidiaries. No audit by Taxing Authorities of Raging River Bellatrix or its subsidiaries is in process or to the knowledge of Raging RiverBellatrix, pending; and
(viivi) Raging River Bellatrix is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Time.;
Appears in 1 contract
Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement DateDisclosure Letter, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging RiverPengrowth:
(i) all material Returns required to be filed by or on behalf of Raging River Pengrowth for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River Pengrowth with respect to items or periods covered by such Returns;
(ii) Raging River Pengrowth has paid or has withheld and remitted to the appropriate Taxing Authority on a timely basis all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Tax Return, or, where payment is not yet due, Raging River Pengrowth has established adequate accruals in conformity with GAAP IFRS in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Tax Return. Raging River Pengrowth has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Tax Return;
(iii) no written claim has been made by any Governmental Authority in a jurisdiction where Pengrowth does not file Tax Returns that Pengrowth is or may be subject to Tax by that jurisdiction;
(iv) there are no Encumbrances, other than the Permitted Encumbrances, with respect to Taxes upon any of the assets of Pengrowth;
(v) no material deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries Pengrowth that have not yet been settled;
(ivvi) Pengrowth has made available to BaytexCona, to the extent requested by BaytexCona, true and complete copies of: (A) material income tax audit reports, statements statement of deficiencies, notices of assessment and notices of reassessment of Raging RiverPengrowth, material closing or other agreements in respect received by Pengrowth or on behalf of Taxes of Raging RiverPengrowth relating to Taxes; and (B) any material all income tax returns Returns for Raging River Pengrowth including all predecessor entities, in all cases in respect of tax taxable years ended on or after December 31, 20152012;
(vvii) no liability (or reasonable claim of liability) shall arise under any tax sharingExcept as disclosed in the Disclosure Letter, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River Pengrowth is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging RiverPengrowth, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River Pengrowth or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging RiverPengrowth. No audit by Taxing Authorities of Raging River Pengrowth is in process or to the knowledge of Raging RiverPengrowth, pending; and;
(viiviii) Raging River Pengrowth's tax pools as at September 30, 2019 were accurately disclosed in the Disclosure Letter. Except as disclosed in the Disclosure Letter, such tax pools have not materially and adversely changed since September 30, 2019;
(ix) Pengrowth has not entered into any agreements or made any covenants with any parties with respect to the issuance of "flow-through shares" (as defined in the Tax Act) or the incurring and renunciation of "Canadian exploration expense" or "Canadian development expense" (each as defined in the Tax Act), which amounts have not been fully expended and renounced as required thereunder;
(x) Pengrowth has not, at any time, directly or indirectly transferred any property to or supplied any services to, or acquired any property or services from, a Person with whom it was not dealing at arm's length (within the meaning of the Tax Act) for consideration other than consideration equal to the fair market value of the property or services at the time of the transfer, supply or acquisition of the property or services;
(xi) Pengrowth has not, at any time, directly or indirectly, transferred any property or supplied any services to, acquired any property or services from, a Person who is not resident in Canada for purposes of the Tax Act and with whom Pengrowth was not dealing at arm's length (within the meaning of the Tax Act) for consideration other than consideration equal to the fair market value of such property or services at the time of transfer, supply or acquisition, as the case may be, nor has Pengrowth been deemed to have done so for purposes of the Tax Act; and Pengrowth has made or obtained records or documents that meet the requirements of paragraphs 247(4)(a) to (c) of the Tax Act, and there are no transactions to which subsection 247(2) or subsection 247(3) of the Tax Act may reasonably be expected to apply;
(xii) there are no circumstances existing which could result in the application of section 78 or sections 80 to 80.04 of the Tax Act, or any equivalent provision under provincial Applicable Law, to Pengrowth. Other than in the ordinary course, Pengrowth has not claimed nor will it claim any reserve under any provision of the Tax Act or any equivalent provincial provision, if any amount could be included in the income of Pengrowth for any period ending after the Effective Time;
(xiii) Pengrowth is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after agreement. Pengrowth has no liability for the Effective TimeTaxes of any other Person under any applicable legislation, as a transferee or successor, by contract or otherwise; and
(xiv) for purposes of the Tax Act, Pengrowth is resident in, and is not a non-resident of Canada and is a "taxable Canadian corporation".
Appears in 1 contract
Samples: Arrangement Agreement
Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement Date, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
(i) Any and all Returns required to be filed payments made by or on behalf of Raging River for periods ended on and prior the Borrower to (or to the Agreement Date have been duly filed on a timely basis credit of) the Lender hereunder or under any related documents shall be made free and such tax returns are complete clear of and correct in all material respects. All Taxes shown to be payable on such Returns without deduction for any present or on subsequent assessments future taxes, levies, imposts, deductions, charges, withholdings or liabilities with respect thereto thereto, excluding all income taxes, franchise taxes and other taxes of Barbados and of the jurisdiction of the Lender's Iending office or any political subdivision of either thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable by the Borrower to the Lender hereunder or under any related document, then (A) the sum payable shall be increased as may be necessary so that after all required deductions of Taxes (including Taxes applicable to additional sums payable under this Clause 6.01(b)) are made, the Lender receives an amount equal to the sum it would have received had no such deductions been paid in full on a timely basismade, (B) all such deductions shall be made, and no (C) the füll amount deducted shall be remitted by the Borrower to the relevant taxation authority or other Taxes are payable by Raging River authority in accordance with respect to items or periods covered by such Returns;applicable law.
(ii) Raging River has paid In addition, the Borrower agrees to pay any stamp duties and any filing, registration and recording fees and similar fees which arise from the execution, delivery, registration or has withheld and remitted filing of, or otherwise with respect to, this Agreement or the Mortgage Debenture (hereinafter referred to the appropriate Taxing Authority all as "Other Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;").
(iii) no deficiencies have been asserted in writing Upon written demand from the Lender and the Borrower's receipt of the Originals (or certified copies) of any receipts evidencing the payment of any Taxes or Other Taxes by the Lender, the Borrower shall indemnify the Lender for the füll amount of Taxes and Other Taxes (including, without Hmitation, any Taxes (or Other Taxes) imposed by any Governmental Authority with respect to Taxes of Raging River or jurisdiction on amounts payable under this Clause 6.01(b)) paid by the Lender and for any of its subsidiaries that have not yet been settled;liability arising in connection therewith.
(iv) has made available to BaytexWithin thirty (30) calendar days after the date of any payment of Taxes or Other Taxes, the Borrower shall furnish to the extent requested by Baytex, true and complete copies of: Lender the original (Aor a certified copy) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;a receipt evidencing the payment thereof.
(v) no liability (or reasonable claim Without prejudice to the survival of liabilityany other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Clause 6.0 l(b) shall arise under survive the payment in füll of any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result other obligations of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, the Borrower to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeLender hereunder.
Appears in 1 contract
Samples: Loan Agreement (Pricesmart Inc)
Taxes, Etc. Except as disclosed in writing to Baytex prior (a) All payments by the Company and each other Obligor to the Agreement DateAgent or any Lender in respect of any Obligation shall be made without any setoff or counterclaim, and free and clear of and without deduction or withholding for or on account of, any present or future Taxes now or hereafter imposed on the Agent or any Lender with respect to such payments by any governmental or other authority, except to the extent that such deduction or withholding is compelled by law. As used herein, the term "Taxes" shall include all excise and other taxes of whatever nature imposed on the Agent or any matter referred to in this subparagraph does not, and would not reasonably be expected Lender with respect to, have a material adverse effect or arising out of, such payments or the transactions contemplated hereby (other than taxes generally assessed on Raging Riverthe net income of the Agent or any Lender, as the case may be, by the government of the country, or any political subdivision or taxing authority thereof or therein, in which the Agent or such Lender is incorporated or in which such Lender's Domestic Office or such Lender's LIBOR Office is located) as well as all levies, imposts, duties, charges, or fees of whatever nature. If any Obligor is compelled by law to make any such deduction or withholding it will:
(i) all Returns pay to the relevant authorities the full amount required to be filed by so withheld or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returnsdeducted;
(ii) Raging River has paid or has withheld and remitted (except to the appropriate Taxing Authority all Taxesextent that such deduction or withholding results from the breach, by the recipient of a payment, of its agreement contained in clause (b) below, or would not be required if such recipient's representation and warranty contained in clause (b) below were true) pay such additional amounts as may be necessary in order that the net amount received by the Agent and each Lender, after such deduction or withholding (including any instalments required deduction or prepayments of Taxes, that are due and payable withholding on such additional amounts) shall equal the amount such payee would have received had no such deduction or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not withholding been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;made; and
(iii) no deficiencies have been promptly forward to the Agent (for delivery to such payee) an official receipt or other documentation satisfactory to the Agent evidencing such payment to such authorities. Moreover, if any Taxes are directly asserted in writing by against the Agent or any Governmental Authority Lender with respect to any payment made in respect of, or arising out of, any Obligation, such payee may pay such Taxes, and each Obligor which is obligated to pay such Obligation agrees promptly to pay such additional amount (including any penalties, interest or expenses) as may be necessary in order that the net amount received by such payee after the payment of such taxes (including any Taxes on such additional amount) shall equal the amount such payee would have received had no such Taxes been asserted (except to the extent that such Taxes result from the breach, by such payee, of Raging River its agreement contained in clause (b) below or would not be asserted if such payee's representation and warranty contained in clause (b) below were true). For purposes of this Section 4.6, a distribution hereunder by the Agent or any Lender to or for the account of its subsidiaries that have not yet been settled;any Lender shall be deemed to be a payment by the applicable Obligor.
(ivb) has made available Each Lender which is a Non-United States Person agrees (to Baytexthe extent it is permitted to do so under the laws and any applicable double taxation treaties of the United States, the jurisdiction of such Lender's incorporation, and the jurisdictions in which such Lender's Domestic Office and such Lender's LIBOR Office are located) to execute and deliver to the Agent for delivery to the Company, before the first scheduled payment date in each year, either (i) three United States Internal Revenue Service Forms 1001 or (ii) three United States Internal Revenue Service Forms 4224 together with three United States Internal Revenue Service Forms W-9, or any successor forms, as appropriate, properly completed and claiming complete or partial, as the case may be, exemption from withholding and deduction of United States federal Taxes. Each Lender which is a Non-United States Person represents and warrants to each Obligor and to the Agent that, at the date of this Agreement, (i) its Domestic Office and its LIBOR Office are entitled to receive payments of principal, interest, Reimbursement Obligations, and fees hereunder and under the other Loan Documents without deduction or withholding for or on account of any Taxes imposed by the United States or any political subdivision thereof and (ii) it is permitted to take the actions described in the preceding sentence under the laws and any applicable double taxation treaties of the jurisdictions specified in the preceding sentence. Each Lender which is a Non-United States Person further agrees that, to the extent requested by Baytex, true any form claiming complete or partial exemption from withholding and complete copies of: deduction of United States federal Taxes delivered under this clause (Ab) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing is found to be incomplete or other agreements incorrect in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entitiesrespect, such Lender shall (to the extent it is permitted to do so under the laws and any double taxation treaties of the United States, the jurisdiction of its incorporation, and the jurisdictions in which its Domestic Office and its LIBOR Office are located) execute and deliver to the Agent a complete and correct replacement form.
(c) Each Lender agrees to use reasonable efforts to change its Domestic Office or LIBOR Office to avoid or to minimize any amounts otherwise payable under clause (a) of this Section 4.6, in all cases each case solely if such change can be made in respect of tax years ended on a manner so that such Lender, in its sole determination, suffers no legal, economic, or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timeregulatory disadvantage.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Kaiser Aluminum Corp)
Taxes, Etc. Except Borrower hereby covenants that all payments ---------- by Borrower to BofA in respect of any Obligation shall be made without any set-off or counterclaim, and free and clear of and without deduction or withholding for or on account of, any present or future Taxes now or hereafter imposed on Borrower or BofA (as disclosed in writing applicable) with respect to Baytex prior to the Agreement Datesuch payments by any governmental or other authority, or except to the extent that such deduction or withholding is compelled by applicable laws, rules or regulations. As used herein, the term "Taxes" shall include all excise and ----- other taxes of whatever nature imposed on Borrower or BofA (as applicable) with respect to such payments (other than taxes generally assessed on the overall net income of BofA imposed by the jurisdiction in which BofA's principal executive office is located), as well as all levies, imposts, duties, charges or fees of whatever nature. If Borrower is compelled by applicable laws, rules or regulations to make any matter referred to in this subparagraph does notsuch deduction or withholding, and would not reasonably be expected to, have a material adverse effect on Raging RiverBorrower will:
(ia) all Returns pay to the relevant authorities the full amount required to be filed so withheld or deducted;
(b) pay to BofA such additional amounts as may be necessary in order that the net amount received by BofA, after such deduction or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable withholding (including any required deduction or withholding on such Returns additional amounts) shall equal the amount BofA would have received had no such deduction or on subsequent assessments with respect thereto have withholding been paid in full on a timely basismade; and
(c) promptly forward to BofA an official receipt or other documentation satisfactory to BofA evidencing such payment to such authorities. Moreover, and no other if any Taxes are payable by Raging River directly asserted against BofA with respect to items or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent Obligation, BofA may pay such Taxes, and Borrower agrees promptly to pay such additional amount (including, without limitation, any penalties, interest or expenses) as may be necessary in order that the net amount received by BofA after the payment of such taxes (including any Taxes on such additional amount) shall equal the amount BofA would have received had no such Taxes been asserted. Such amounts will be payable without regard to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes aggregate Revenues of Raging River or any of the Borrower and its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeSubsidiaries.
Appears in 1 contract
Samples: Contingent Multicurrency Note Purchase Commitment Agreement (Storage Technology Corp)
Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement Date, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
(i) Each Seller shall timely pay and discharge or cause to be paid and discharged, when due all Returns Taxes imposed upon it and the issuers of the Purchased Assets and Subject Securities (other than the Nomura Securities) upon its or their income and profits, and upon any of its or their property, real, personal or mixed (including without limitation, the Transaction Assets) or upon any part thereof, as well as any other lawful claims which, if unpaid, might become a Lien upon such properties or any part thereof.
(ii) Each Seller and the issuer of the Transaction Assets shall file on a timely basis all federal, state and local tax and information returns, reports and any other information statements or schedules required to be filed by or on behalf in respect of Raging River it and pay all Taxes, except for periods ended on any such Taxes as are appropriately contested in good faith by appropriate proceedings diligently conducted and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;which adequate reserves are provided.
(iiiii) Raging River has paid or has withheld CBO REIT II shall not fail to qualify as REIT from the date of its incorporation and remitted shall remain a REIT, and each REIT Subsidiary shall remain a Qualified REIT Subsidiary.
(iv) The transfer of assets from CBO REIT, Inc., a Maryland corporation, to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable CBO REIT II on or prior to the Agreement Purchase Date whether does not cause either REIT Subsidiary to fail to qualify as a Qualified REIT Subsidiary or not shown cause any Subject Securities to be treated as being due on any Return, or, where payment assets of a corporation which is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;a Qualified REIT Subsidiary.
(v) no liability (or reasonable claim of liability) Newco shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is remain a party disregarded entity treated as a result part of this transaction;the Guarantor for federal income tax purposes.
(vi) Raging River To the Knowledge of each Seller, each of the Sellers is not fully eligible to make a party to any action or proceeding for assessment or collection claim under, and all payments under this Repurchase Agreement will be entitled to, the benefits of Taxes, nor, to the knowledge "Other Income" provision of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect the income tax treaty between the United States and the United Kingdom with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process any payment received or to be received by it in connection with this Repurchase Agreement, and no such payments are attributable to a trade or business carried on by it through a permanent establishment in the knowledge of Raging River, pending; andUnited Kingdom.
(vii) Raging River is not None of the issuers of the Subject Securities (other than the Nomura Securities) shall be subject to U.S. federal income tax on a party to net tax basis, or bound by any Tax sharing agreementother material tax, Tax indemnity agreement, Tax allocation agreement duty or similar agreement which will have effect after the Effective Timeother governmental charge.
Appears in 1 contract
Taxes, Etc. Except as disclosed in writing to Baytex prior (a) All payments made by the Company to the Agent, any Bank, any Assignee or any Participant under this Agreement Dateand the Committed Notes shall be made without any set-off or counterclaim, and free and clear of and without deduction for or on account of any present or future Covered Taxes now or hereafter imposed (except to the extent that such withholding or deduction is compelled by law). If the Company is compelled by law to make any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging Riversuch deductions or withholdings of any Covered Taxes it will:
(i) all Returns pay to the relevant authorities the full amount required to be filed by so withheld or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;deducted,
(ii) Raging River has paid pay such additional amounts as may be necessary in order that the net amount received by the Agent, each Bank, each Assignee and each Participant after such deductions or has withheld and remitted withholdings (including any required deduction or withholding on such additional amounts) shall equal the amount such payee would have received had no such deductions or withholdings been made, and
(iii) promptly forward to the appropriate Taxing Authority all Agent (for delivery to such payee) an official receipt or other documentation satisfactory to the Agent evidencing such payment to such authorities. Moreover, if any Covered Taxes are directly asserted against the Agent, any Bank, any Assignee or any Participant, such payee may pay such Covered Taxes, and, upon receipt of an official receipt or other reasonably satisfactory documentation evidencing such payment, the Company shall promptly pay such additional amount (including, without limitation, any penalties, interest or reasonable expenses) as may be necessary in order that the net amount received by such payee after the payment of such Covered Taxes (including any instalments or prepayments of TaxesCovered Taxes on such additional amount) shall equal the amount such payee would have received had no such Covered Taxes been asserted (provided, that are due the Agent, the Banks, and payable any Assignee or Participant shall use reasonable efforts, to the extent consistent with applicable laws and regulations, to minimize to the extent possible any such Covered Taxes if they can do so without material cost or legal or regulatory disadvantage). For purposes of this Section 5.4, a distribution hereunder by the Agent or any Bank to or for the account of any Bank, Assignee or Participant shall be deemed to be a payment by the Company. The Company’s agreement under this Section 5.4 shall survive repayment of the Committed Loans, cancellation of the Committed Notes or any termination of this Agreement.
(b) In consideration of, and as a condition to, the Company’s undertakings in Section 5.4(a), each Bank other than a Bank that is organized and existing under the laws of the United States of America or any State thereof or the District of Columbia (a “Non-U.S. Bank”) agrees to execute and deliver to the Agent at its Payment Office for delivery to the Company, on or prior to the date on which such Non-U.S. Bank becomes a Bank under this Agreement, (i) to the extent it acts for its own account with respect to any portion of any sums paid or payable to such Non-U.S. Bank under this Agreement, two original copies of United States Internal Revenue Service Forms X-0XXX, X-0XXX or W-8EXP (or any successor forms), as appropriate, properly completed and duly executed by such Non-U.S. Bank, and claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, (ii) to the extent it does not act or has ceased to act for its own account with respect to any portion of any sums paid or payable to such Bank under this Agreement Date (for example, in the case of a typical participation by such Non-U.S. Bank), (1) for the portion of any such sums paid or payable with respect to which such Non-U.S. Bank acts for its own account, two original copies of the forms or statements required to be provided by such Non-U.S. Bank under subsection (i) of this Section 5.4(b), properly completed and duly executed by such Non-U.S. Bank and claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, and (2) for the portion of any such sums paid or payable with respect to which such Non-U.S. Bank does not act or has ceased to act for its own account, two original copies of United States Internal Revenue Service Form W-8IMY (or any successor forms), properly completed and duly executed by such Non-U.S. Bank, together with any information, if any, such Non-U.S. Bank chooses to transmit with such form, and (iii) any other properly completed and duly executed form or forms prescribed by applicable law as a basis for claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, together with such supplementary documentation as may be prescribed by applicable law to permit the Company to determine the withholding or deduction required to be made.
(c) Each Bank that is organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (a “U.S. Bank”) agrees to execute and deliver to the Agent at the Payment Office for delivery to the Company, on or before the date of this Agreement or on or before the date such Bank becomes a Bank hereunder a copy of United States Internal Revenue Service Form W-9 (or any successor forms) properly completed and duly executed by such U.S. Bank, and claiming that it is organized and existing under the laws of the United States of America or any State thereof or such other documentation or information prescribed by applicable law or reasonably requested by the Agent as will enable the Company or the Agent, as the case may be, to determine whether or not shown as being due on any Returnsuch U.S. Bank is subject to backup withholding or information reporting requirements.
(d) Each Bank hereby agrees, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in from time to time after the Raging River Financial Statements for the period covered initial delivery by such financial statements Bank of any forms or other information pursuant to Section 5.4(b) or 5.4(c), whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence so delivered obsolete or inaccurate in any material respect, that such Bank shall promptly (and in all events, prior to the next applicable payment date), deliver to the Agent at the Payment Office for delivery to the Company two original copies of any Taxesrenewal, including income taxes amendment or additional or successor forms, properly completed and related future taxesduly executed by such Bank, together with any other certificate or statement of exemption required by applicable law or regulation in order to (i) confirm or establish such Bank’s complete exemption from (or entitlement to a reduced rate of) withholding and deduction of United States Federal Taxes with respect to payments to such Bank under this Agreement, (ii) if applicable, in the case of a change in law after the date on which such Bank became a Bank hereunder that have not been paidresults in a withholding or deduction of United States Federal Taxes on payments hereunder to such Bank, whether or not shown establish the status of such Bank as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records other than a United States person for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to BaytexUnited States Federal tax purposes and, to the extent entitled under an applicable treaty or other law, claim the benefit of an exemption or a reduced rate of withholding and deduction of United States Federal Taxes with respect to any such payments under an applicable tax treaty of the United States, and/or (iii) if applicable, confirm or establish that such Bank does not act for its own account with respect to any portion of any such payments.
(e) If the Company determines in good faith that a reasonable basis exists for contesting a Covered Tax with respect to which the Company has paid an additional amount under this Section 5.4, the Agent and the Banks, as applicable, shall, subject to Section 5.4(f), cooperate with the Company in challenging such Covered Tax at the Company’s expense if requested by Baytexthe Company (it being understood and agreed that neither the Agent nor any Bank shall have any obligation to contest, true and complete copies of: or any responsibility for contesting, any Tax). If the Agent or a Bank has actual knowledge that it is entitled to receive a refund (Awhether by way of a direct payment or by clearly identifiable offset to an amount otherwise owed to the relevant taxing authority) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect Covered Tax with respect to Taxes which the Company has paid an additional amount under this Section 5.4, it shall promptly notify the Company of the availability of such refund (unless it was made aware of such refund by the Company) and shall, within 30 days after the receipt of a request from the Company, apply for such refund at the Company’s expense. If the Agent or Returns any Bank receives a refund (whether by way of Raging Rivera direct payment or by clearly identifiable offset to an amount otherwise owed to the relevant taxing authority) of any Covered Tax with respect to which the Company has paid an additional amount under this Section 5.4 which, in the reasonable good faith judgment of the Agent or such Bank, as the case may be, is allocable to such payment made under this Section 5.4, the amount of such refund (together with any interest received thereon) shall be paid to the Company, but only to the extent of the additional amounts received from the Company, provided that, in the case of a Covered Tax the Company was required to deduct and withhold under this Section 5.4, the Company deducted and withheld such Covered Tax in full as and when required pursuant to this Section 5.4, provided further, that if all or any portion of such refund subsequently becomes unavailable or must be returned, the Company shall repay to the Agent or Bank that paid over such refund to the Company an amount equal to any portion of the refund that must be returned, plus any interest, penalties or other charges imposed with respect thereto.
(f) Notwithstanding any other provision of paragraphs (b), (c) or (d) of this Section 5.4, an Agent or Bank shall not be required to deliver any form that such Agent or Bank is not legally able to deliver. No audit by Taxing Authorities Nothing contained in this Section 5.4 shall require any Agent, Bank, Assignee or Participant to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Company or any other Person.
(g) Each Bank will, at the Company’s request, designate a different Funding Office if such designation will avoid the need for, or reduce the amount of, such amounts and will not, in such Bank’s sole discretion, be otherwise disadvantageous to such Bank.
(h) The applicable Bank, acting solely for this purpose as a non-fiduciary agent of Raging River the Company (solely for tax purposes), shall maintain a register on which it enters the name and address of each Participant, and the amount of each such Participant’s interest in such Bank’s rights and/or obligations under this Agreement (the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Committed Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Committed Loan or other obligation is in process or to registered form under Section 5f.103-1(c) of the knowledge United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timeapplicable rights and/or obligations of such Bank under this Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (International Lease Finance Corp)
Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement Date, (a) All payments of any kind made under this Note or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
(i) all Returns required document to be filed delivered hereunder by or on behalf of Raging River the Borrower shall be made free and clear and without any present or future deduction, withholding, charge, levy or imposition for periods ended or on and prior account of any Taxes, except as required by applicable Laws. Subject to the Agreement Date have been duly filed on a timely basis and such tax returns Section 8.1(c) below, all Taxes, if any, as are complete and correct in all material respects. All Taxes shown required by applicable Laws to be payable deducted, withheld, charged, levied, collected or imposed on such Returns any Person on or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items any such payment made by or periods covered on behalf of the Borrower shall be paid by such Returns;
(ii) Raging River has paid or has withheld and remitted the Borrower by paying to the appropriate Taxing Authority all Lender, in addition to such payment, such additional payment as is necessary to ensure that the net amount received by the Lender (net of any such Taxes, including any instalments Taxes required to be deducted, withheld, charged, levied, collected or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due imposed on any Returnsuch additional amounts) equals the full amount that the Lender would have received had no such deduction, orwithholding, where payment is not yet duecharge, Raging River has established adequate accruals in conformity with GAAP in levy, collection or imposition been required.
(b) Subject to Section 8.1(c), if the Raging River Financial Statements for the period covered by such financial statements Lender or any Beneficial Owner becomes liable for any Taxes, including income taxes and related future taxesother than Excluded Taxes, if applicable, that have not been paid, whether or not shown as being due imposed on any Return. Raging River haspayments under this Note, in all material respectsthe Borrower shall indemnify the Lender or such Beneficial Owner for such Tax, made adequate provision or disclosure in its books and records for the indemnity payment shall be increased as necessary so that, after the imposition of any Taxes accruing such Tax on the indemnity payment (including Tax in respect of any period subsequent such increases in the indemnity payment), the Lender or such Beneficial Owner shall receive the full amount of such Taxes for which it is liable and are due and payable. Any indemnity payments for such Taxes shall be due and payable by the Borrower within five (5) Business Days of demand from the Lender. If reasonably requested by the Borrower, the Lender or such Beneficial Owner will use reasonable efforts to dispute the imposition or assertion of such Taxes by the relevant Governmental Body, all at the Borrower’s expense. A certificate as to the period covered amount of such payment or liability delivered to the Borrower by such financial statements, whether or not shown as being due on any Return;the Lender shall be conclusive absent manifest error.
(iiic) no deficiencies have been asserted in writing Notwithstanding Sections 8.1(a) and 8.1(b), the Borrower shall not be responsible for any Excluded Taxes imposed or collected by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements foreign jurisdiction in respect of Taxes payments of Raging River; any kind made by the Lender pursuant to this Note.
(d) The parties agree to reasonably cooperate and the Lender agrees to assert such influence as it has over the Beneficial Owners to cooperate to (i) ensure that no more Taxes, duties or other charges are payable other than as required under applicable Law and (Bii) obtain a refund or credit of any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;Taxes which have been overpaid.
(ve) no liability (or reasonable claim Without limiting the provisions of liabilitySections 8.1(a) and 8.1(b), the Borrower shall arise under timely pay any tax sharing, tax indemnity or tax allocation agreement or arrangement Other Taxes to which Raging River is a party as a result of this transaction;the relevant Governmental Body in accordance with applicable Law.
(vif) Raging River is not As soon as practicable after any payment of Taxes or Other Taxes by the Borrower to a party Governmental Body pursuant to any action or proceeding for assessment or collection of TaxesSection 8.1, nor, the Borrower shall deliver to the knowledge Lender the original or a certified copy of Raging Rivera receipt issued by such Governmental Body evidencing such payment, has a copy of the return reporting such an event been asserted in writing by any Governmental Authority payment or threatened against Raging River or any other evidence of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or such payment reasonably satisfactory to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeLender.
Appears in 1 contract
Taxes, Etc. Except (a) All payments made by a Borrower hereunder, under a Note or under any Loan Document will be made without set-off, counterclaim, deduction or other defense. All such payments shall be made free and clear of and without deduction for any present or future income, franchise, sales, use, excise, stamp or other taxes, levies, imposts, deductions, charges, fees, withholdings, restrictions or conditions of any nature now or hereafter imposed, levied, collected, withheld or assessed by any jurisdiction (whether pursuant to United States Federal, state, local or foreign law) or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities, excluding taxes on the overall net income of the Bank (such nonexcluded taxes are hereinafter collectively referred to as disclosed the "Taxes"). If a Borrower shall be required by law to deduct or to withhold any Taxes from or in writing to Baytex prior to respect of any amount payable hereunder, (i) the Agreement Date, or amount so payable shall be increased to the extent necessary so that any matter referred after making all required deductions and withholdings (including Taxes on amounts payable to in the Bank pursuant to this subparagraph does notsentence) the Bank receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) such Borrower shall make such deductions or withholdings, and would not reasonably be expected to, have a material adverse effect on Raging River:
(iiii) all Returns required to be filed by such Borrower shall pay the full amount deducted or on behalf of Raging River for periods ended on and prior withheld to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct relevant taxation authority in all material respectsaccordance with applicable law. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Whenever any Taxes are payable by Raging River with respect a Borrower, as promptly as possible thereafter, such Borrower shall send the Bank an official receipt showing payment. In addition, each Borrower agrees to items pay any present or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicablecharges or similar levies which arise from any payment made hereunder or from the execution, that have not been paiddelivery, performance, recordation or filing of, or otherwise with respect to, this Loan Agreement, the Notes or any other Loan Document (hereinafter referred to as "Other Taxes").
(b) The U.S. Borrower will indemnify the Bank for the amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 3.05) paid by the Bank (including penalties, interest and expenses for nonpayment, late payment or otherwise) arising therefrom or with respect thereto, whether or not shown as being due such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be paid within 30 days from the date on any Return. Raging River haswhich the Bank makes written demand.
(c) If the U.S. Borrower fails to perform its obligations under this Section 3.05, in all material respects, made adequate provision or disclosure in its books and records the U.S. Borrower shall indemnify the Bank for any Taxes accruing in respect of any period subsequent to the period covered by such financial statementsincremental taxes, whether interest or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries penalties that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party may become payable as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timefailure.
Appears in 1 contract
Taxes, Etc. Except as disclosed in writing to Baytex prior All payments made by the Borrower to the Agreement DateLender under this Debenture shall be made free and clear of, and without deduction for or on account of, any Taxes now or hereafter imposed by any official body in any jurisdiction. If any Taxes are required to be withheld or deducted from any amounts payable by the Borrower to the extent that any matter referred to in this subparagraph does notLender hereunder, and would not reasonably be expected to, have a material adverse effect on Raging Riverthe Borrower shall:
(a) within the time period for payment permitted by Applicable Law, pay to the appropriate governmental body the full amount of such Taxes and any additional Taxes in respect of the payment required under Section 9.1(b) hereof and make such reports and filings in connection therewith in the manner required by Applicable Law; and
(b) pay to the Lender an additional amount (“Additional Amounts”) which (after deduction of all Taxes incurred by reason of the payment or receipt of such Additional Amount) will be sufficient to yield to the Lender the full amount which would have been received by it had no deduction or withholding been made. However, the foregoing obligations to pay Additional Amounts does not apply to:
(c) any Canadian withholding Taxes imposed on a payment to a Lender or beneficial owner of the Debenture (or the right to receive interest payable on the Debenture) by reason of the Borrower not dealing at arm’s length (within the meaning of the Income Tax Act (Canada)) with such Lender or beneficial owner of Debenture (or the right to receive interest payable on the Debenture) at the time of the payment;
(d) any Canadian withholding Taxes imposed on a payment to a Lender or beneficial owner of Debenture by reason of such Lender or beneficial owner being a “specified shareholder” of the Borrower (as defined in subsection 18(5) of the Income Tax Act (Canada)) or by reason of such Lender or beneficial owner not dealing at arm’s length with a specified shareholder of the Borrower;
(e) any withholding Taxes imposed on a payment to a Lender, former Lender or beneficial owner of Debenture by reason of such Lender’s, former Lender ’s or beneficial owner’s failure to comply with any certification, identification, information, documentation or other reporting requirement if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes; or
(f) Taxes imposed on or measured by net income or net profits (however denominated), franchise Taxes, and branch profits Taxes, in each case (i) all Returns required to be filed by imposed as a result of such Lender being organized under the laws of, or on behalf having its principal office, or in the case of Raging River for periods ended on any Lender, its applicable lending office, located in the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) Taxes imposed as a result of a present or former connection between such Lender and prior the jurisdiction imposing such Tax. Upon the request of the Lender, the Borrower shall furnish to the Agreement Date have been duly filed on Lender the original or a timely basis and certified copy of a receipt for (or other satisfactory evidence as to) the payment of each of the Taxes (if any) payable in respect of such tax returns are complete and correct in all material respectspayment. All If the Lender receives a refund of any Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;
(ii) Raging River which the Borrower has paid or has withheld and remitted any additional amount under this Section 9.1, the Lender shall pay over such refund to the appropriate Taxing Authority all TaxesBorrower. For greater certainty, including any instalments nothing herein is intended to require payment by the Borrower to or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing Lender in respect of any period subsequent to Taxes payable by the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements Lender in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entitieson the Lenders’ own income, in all cases in respect of tax years ended on capital, capital gains, dividends, or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement other earnings realized pursuant to which Raging River is a party as a result payments made pursuant to the terms of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeDebenture.
Appears in 1 contract
Samples: Exchange and Subscription Agreement (Canopy Growth Corp)
Taxes, Etc. Except as disclosed in writing to Baytex prior (a) All payments made by the Company to the Agent, any Bank, any Assignee or any Participant under this Agreement Date, and the Committed Notes shall be made without any set off or counterclaim and free and clear of and without deduction for or on account of any present or future Covered Taxes (except to the extent that such withholding or deduction is compelled by law). If the Company is compelled by law to make any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging Riversuch deductions or withholdings of any Taxes it will:
(i) all Returns pay to the relevant authorities the full amount required to be filed by so withheld or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;deducted,
(ii) Raging River has paid pay such additional amounts as may be necessary in order that the net amount received by the Agent, each Bank, each Assignee and each Participant after such deductions or has withheld and remitted withholdings for Covered Taxes (including any required deductions or withholdings of Covered Taxes on such additional amounts) shall equal the amount such payee would have received had no such deductions or withholdings been made, and
(iii) promptly forward to the appropriate Taxing Authority all Agent (for delivery to such payee) an official receipt or other documentation satisfactory to the Agent evidencing such payment to such authorities. Moreover, if any Covered Taxes are directly asserted against the Agent, any Bank, any Assignee or any Participant, such payee may pay such Covered Taxes, and, upon receipt of an official receipt or other reasonably satisfactory documentation evidencing such payment, the Company shall promptly pay such additional amount (including, without limitation, any reasonable expenses with respect thereto) as may be necessary in order that the net amount received by such payee after the payment of such Covered Taxes (including any instalments Covered Taxes on such additional amounts) shall equal the amount such payee would have received had no such Covered Taxes been asserted (provided, that, the Agent, the Banks, and any Assignee or prepayments Participant shall use reasonable efforts, to the extent consistent with applicable laws and regulations, to minimize to the extent possible any material amounts of Taxessuch Covered Taxes if they can do so without material cost or legal or regulatory disadvantage). For purposes of this Section 5.4, a distribution hereunder by the Agent or any Bank to or for the account of any Bank, Assignee or Participant shall be deemed to be a payment by the Company. The Company’s agreement under this Section 5.4 shall survive repayment of the Committed Loans, cancellation of the Committed Notes or any termination of this Agreement.
(b) In consideration of, and as a condition to, the Company’s undertakings in Section 5.4(a), each Bank other than a Bank that are due is organized and payable existing under the laws of the United States of America or any State thereof or the District of Columbia (a “Non-U.S. Bank”) agrees to execute and deliver to the Agent and the Company, on or prior to the date on which such Non-U.S. Bank becomes a Bank under this Agreement, and at the time or times reasonably requested by the Company or the Agent (i) to the extent it acts for its own account with respect to any portion of any sums paid or payable to such Non-U.S. Bank under this Agreement, two original copies of IRS Forms X-0XXX, X-0XXX or W-8EXP (or any successor forms), as appropriate, properly completed and duly executed by such Non-U.S. Bank, and, in the case of a Non-U.S. Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate substantially in the form of Exhibit H to the effect that such Non-U.S. Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”), claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, (ii) to the extent it does not act or has ceased to act for its own account with respect to any portion of any sums paid or payable to such Bank under this Agreement Date (for example, in the case of a typical participation by such Non-U.S. Bank or where such Non-U.S. Bank is a partnership), (1) for the portion of any such sums paid or payable with respect to which such Non-U.S. Bank acts for its own account, two original copies of the forms or statements required to be provided by such Non-U.S. Bank under subsection (i) of this Section 5.4(b), properly completed and duly executed by such Non-U.S. Bank and claiming complete exemption from (or a reduced rate of) withholding and deduction of United States Federal Taxes, and (2) for the portion of any such sums paid or payable with respect to which such Non-U.S. Bank does not act or has ceased to act for its own account, two original copies of IRS Form W-8IMY (or any successor forms), properly completed and duly executed by such Non-U.S. Bank, together with IRS Form W-8BEN, IRS Form W-8ECI, IRS Form W-8EXP (or any successor forms), a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable, provided, that if the Non-U.S. Bank is a partnership and one or more direct or indirect partners of such Non-U.S. Bank are claiming the portfolio interest exemption, such Non-U.S. Bank may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner, (iii) any other properly completed and duly executed form or forms reasonably requested by the Company or the Agent as a basis for claiming complete exemption from (or a reduced rate of) withholding and deduction of Taxes, together with such supplementary documentation reasonably requested by the Company or the Agent to permit the Company or the Agent to determine the withholding (including backup withholding) or deduction required to be made and whether such Non-U.S. Bank is subject to information reporting requirements.
(c) Each Bank that is organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (a “U.S. Bank”) agrees to execute and deliver to the Agent and the Company, on or before the date of this Agreement or on or before the date such Bank becomes a Bank hereunder (and from time to time thereafter upon the reasonable request of the Company or the Agent) a copy of IRS Form W-9 (or any successor forms) properly completed and duly executed by such U.S. Bank, and claiming that it is organized and existing under the laws of the United States of America or any State thereof or such other documentation or information prescribed by applicable law or reasonably requested by the Company or the Agent as will enable the Company or the Agent, as the case may be, to determine whether or not shown such U.S. Bank is subject to backup withholding or information reporting requirements.
(d) If a payment made to a Non-U.S. Bank under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Non-U.S. Bank were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as being due on any Returnapplicable), or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in such Non-U.S. Bank shall deliver to the Raging River Financial Statements Company and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Agent as may be necessary for the period covered Company and the Agent to comply with their obligations under FATCA and to determine that such Non-U.S. Bank has complied with such Non-U.S. Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.
(e) Each Bank hereby agrees, from time to time after the initial delivery by such financial statements for Bank of any Taxesforms or other information pursuant to Section 5.4(b) or 5.4(c), including income taxes whenever a lapse in time or change in circumstances renders such forms, certificates or other evidence so delivered obsolete or inaccurate in any material respect, that such Bank shall promptly (and related future taxesin all events, prior to the next applicable payment date), deliver to the Agent and the Company two original copies of any renewal, amendment or additional or successor forms, properly completed and duly executed, together with any other certificate or statement of exemption required by applicable law or regulation in order to confirm or establish such Bank’s complete exemption from (or entitlement to a reduced rate of) withholding and deduction of United States Federal Taxes with respect to payments to such Bank under this Agreement, (ii) if applicable, in the case of a change in law after the date on which such Bank became a Bank hereunder that have not been paidresults in a withholding or deduction of United States Federal Taxes on payments hereunder to such Bank, whether or not shown establish the status of such Bank as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records other than a United States person for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to BaytexUnited States Federal tax purposes and, to the extent entitled under an applicable treaty or other law, claim the benefit of an exemption or a reduced rate of withholding and deduction of United States Federal Taxes with respect to any such payments under an applicable tax treaty of the United States, and/or (iii) if applicable, confirm or establish that such Bank does not act for its own account with respect to any portion of any such payments.
(f) If the Company determines in good faith that a reasonable basis exists for contesting a Covered Tax with respect to which the Company has paid an additional amount under this Section 5.4, the Agent and the Banks, as applicable, shall, subject to Section 5.4(g), cooperate with the Company in challenging such Covered Tax at the Company’s expense if requested by Baytexthe Company (it being understood and agreed that neither the Agent nor any Bank shall have any obligation to contest, true and complete copies of: or any responsibility for contesting, any Tax). If the Agent or a Bank has actual knowledge that it is entitled to receive a refund (Awhether by way of a direct payment or by clearly identifiable offset to an amount otherwise owed to the relevant taxing authority) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect Covered Tax with respect to Taxes which the Company has paid an additional amount under this Section 5.4, it shall promptly notify the Company of the availability of such refund (unless it was made aware of such refund by the Company) and shall, within 30 days after the receipt of a request from the Company, apply for such refund at the Company’s expense. If the Agent or Returns any Bank receives a refund (whether by way of Raging Rivera direct payment or by clearly identifiable offset to an amount otherwise owed to the relevant taxing authority) of any Covered Tax with respect to which the Company has paid an additional amount under this Section 5.4 which, in the reasonable good faith judgment of the Agent or such Bank, as the case may be, is allocable to such payment made under this Section 5.4, the amount of such refund (together with any interest received thereon) shall be paid to the Company, but only to the extent of the additional amounts received from the Company, provided, that, in the case of a Covered Tax the Company was required to deduct and withhold under this Section 5.4, the Company deducted and withheld such Covered Tax in full as and when required pursuant to this Section 5.4, provided, further, that if all or any portion of such refund subsequently becomes unavailable or must be returned, the Company shall repay to the Agent or Bank that paid over such refund to the Company an amount equal to any portion of the refund that must be returned, plus any interest, penalties or other charges imposed with respect thereto.
(g) Notwithstanding any other provision of paragraphs (b), (c), (d) or (e) of this Section 5.4, an Agent or Bank shall not be required to deliver any form that such Agent or Bank is not legally able to deliver. No audit Nothing contained in this Section 5.4 shall require any Agent, Bank, Assignee or Participant to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Company or any other Person.
(h) Each Bank will, at the Company’s request, designate a different Funding Office if such designation will avoid the need for, or reduce the amount of, amounts required to be paid by Taxing Authorities the Company under this Section 5.4 and will not, in such Bank’s sole discretion, be otherwise disadvantageous to such Bank.
(i) The applicable Bank, acting solely for this purpose as a non-fiduciary agent of Raging River the Company (solely for tax purposes), shall maintain a register on which it enters the name and address of each Participant, and the principal amounts (and stated interest) of each such Participant’s interest in such Bank’s rights and/or obligations under this Agreement (the “Participant Register”); provided, that, no Bank shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Committed Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Committed Loan or other obligation is in process or to registered form under Section 5f.103-1(c) of the knowledge United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Timeapplicable rights and/or obligations of such Bank under this Agreement.
Appears in 1 contract
Samples: Three Year Revolving Credit Agreement (International Lease Finance Corp)
Taxes, Etc. Except All payments made by the Company hereunder will be made without setoff, counterclaim or other defense. All such payments shall be made free and clear of and without deduction for any present or future income, stamp or other taxes, levies, imposts, deductions, charges, fees, withholding, restrictions or conditions of 33 any nature now or hereafter imposed, levied, collected, withheld or assessed by any jurisdiction or by any political subdivision or taxing authority thereof or therein, and all interest, penalties or similar liabilities, excluding taxes on the overall net income of the Holder (such non-excluded taxes are hereinafter collectively referred to as disclosed the "Taxes"). If the Company shall be required by law to deduct or to withhold any Taxes from or in writing to Baytex prior to respect of any amount payable hereunder, (i) the Agreement Date, or amount so payable shall be increased to the extent necessary so that any matter referred to in this subparagraph does not, after making all required deductions and would not reasonably be expected to, have a material adverse effect withholdings (including Taxes on Raging River:
(i) all Returns required to be filed by or on behalf of Raging River for periods ended on and prior amounts payable to the Agreement Date Holder pursuant to this sentence) the Holder receives an amount equal to the sum it would have received had no such deductions or withholdings been duly filed on a timely basis made, (ii) the Company shall make such deductions or withholdings and such tax returns are complete and correct (iii) the Company shall pay the full amount deducted or withheld to the relevant taxation authority in all material respectsaccordance with applicable law. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Whenever any Taxes are payable by Raging River with respect the Company, as promptly as possible thereafter the Company shall send the Holder an official receipt showing payment. In addition, the Company agrees to items pay any present or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicablecharges or similar levies which arise from any payment made hereunder or from the execution, that have not been paiddelivery, whether performance, recordation or not shown filing of, or otherwise with respect to, this Note or any other Document (hereinafter referred to as being due on any Return"Other Taxes"). Raging River hasThe Company will indemnify the Holder for the full amount of Taxes or Other Taxes (including, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent or Other Taxes on amounts payable to the period covered Holder under this paragraph) paid by such financial statementsthe Holder and any liability (including penalties, whether interest and expenses) arising therefrom or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytexthereto, to upon written demand by the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on or after December 31, 2015;
(v) no liability (or reasonable claim of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pending; and
(vii) Raging River is not a party to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeHolder therefor.
Appears in 1 contract
Taxes, Etc. Except as disclosed in writing to Baytex prior to the Agreement DateDisclosure Letter, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
Pengrowth: (i) all material Returns required to be filed by or on behalf of Raging River Pengrowth for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River Pengrowth with respect to items or periods covered by such Returns;
; (ii) Raging River Pengrowth has paid or has withheld and remitted to the appropriate Taxing Authority on a timely basis all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Tax Return, or, where payment is not yet due, Raging River Pengrowth has established adequate accruals in conformity with GAAP IFRS in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Tax Return. Raging River Pengrowth has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Tax Return;
; (iii) no written claim has been made by any Governmental Authority in a jurisdiction where Pengrowth does not file Tax Returns that Pengrowth is or may be subject to Tax by that jurisdiction; (iv) there are no Encumbrances, other than the Permitted Encumbrances, with respect to Taxes upon any of the assets of Pengrowth; (v) no material deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries Pengrowth that have not yet been settled;
; (ivvi) Pengrowth has made available to BaytexCona, to the extent requested by BaytexCona, true and complete copies of: (A) material income tax audit reports, statements statement of deficiencies, notices of assessment and notices of reassessment of Raging RiverPengrowth, material closing or other agreements in respect received by Pengrowth or on behalf of Taxes of Raging RiverPengrowth relating to Taxes; and (B) any material all income tax returns Returns for Raging River Pengrowth including all predecessor entities, in all cases in respect of tax taxable years ended on or after December 31, 2015;
2012; (vvii) no liability (or reasonable claim of liability) shall arise under any tax sharingExcept as disclosed in the Disclosure Letter, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River Pengrowth is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging RiverPengrowth, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River Pengrowth or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging RiverPengrowth. No audit by Taxing Authorities of Raging River Pengrowth is in process or to the knowledge of Raging RiverPengrowth, pending; and
(viiviii) Raging River Pengrowth's tax pools as at September 30, 2019 were accurately disclosed in the Disclosure Letter. Except as disclosed in the Disclosure Letter, such tax pools have not materially and adversely changed since September 30, 2019; (ix) Pengrowth has not entered into any agreements or made any covenants with any parties with respect to the issuance of "flow-through shares" (as defined in the Tax Act) or the incurring and renunciation of "Canadian exploration expense" or "Canadian development expense" (each as defined in the Tax Act), which amounts have not been fully expended and renounced as required thereunder; (x) Pengrowth has not, at any time, directly or indirectly transferred any property to or supplied any services to, or acquired any property or services from, a Person with whom it was not dealing at arm's length (within the meaning of the Tax Act) for consideration other than consideration equal to the fair market value of the property or services at the time of the transfer, supply or acquisition of the property or services; (xi) Pengrowth has not, at any time, directly or indirectly, transferred any property or supplied any services to, acquired any property or services from, a Person who is not a party to or bound by any resident in Canada for purposes of the Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective Time.Act and with whom Pengrowth was
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Taxes, Etc. Except The Tenant shall promptly discharge and pay when due (subject to the right of contestation as disclosed hereinafter mentioned but including any fine, penalty, interest or cost which may be added thereto) all taxes, rates, duties, assessments and other public charges which during the Term may be levied rated, charged or assessed against the leased premises or any property owned or brought thereon by the Tenant; and every tax, license fee, business tax and other public charge (except, however, any goods and services tax and any income, capital or profits taxes imposed on or against the Landlord) together with meters and/or penalties thereon which, during the Term, may be assessed, levied or charged in writing respect of the occupancy of the leased premises by the Tenant, or any businesses carried on therein by the Tenant, or the property of the Tenant thereon or therein whether such taxes, rates, assessments, license fees and other public charges are assessed, levied or charged by municipal, provincial, federal, school or other public body; and, if the Tenant shall fail to Baytex pay any such amount or amounts when due, the Landlord may, at its option, pay the same and an amount equal to the amount so paid, together with interest thereon computed at the agreed rate from the date of payment by the Landlord, shall be charged to and paid by the Tenant as Additional Rent; Notwithstanding anything herein contained to the contrary the Tenant shall, make all payment of the foregoing items and charges, directly to the Landlord monthly in equal installments together with the basic rent, in such amounts as may be advised by the Landlord, from time to time, provided that:
(a) the Tenant shall only be required to pay a proportionate part of any such tax, rate, duty, assessment, fee or charge which relates to a fiscal period of the taxing authority a part of which period is included in a period prior to the Agreement Date, or to the extent that any matter referred to in this subparagraph does not, and would not reasonably be expected to, have a material adverse effect on Raging River:
(i) all Returns required to be filed by or on behalf of Raging River for periods ended on and prior to the Agreement Date have been duly filed on a timely basis and such tax returns are complete and correct in all material respects. All Taxes shown to be payable on such Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Raging River with respect to items or periods covered by such Returns;
(ii) Raging River has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes, including any instalments or prepayments of Taxes, that are due and payable on or prior to the Agreement Date whether or not shown as being due on any Return, or, where payment is not yet due, Raging River has established adequate accruals in conformity with GAAP in the Raging River Financial Statements for the period covered by such financial statements for any Taxes, including income taxes and related future taxes, if applicable, that have not been paid, whether or not shown as being due on any Return. Raging River has, in all material respects, made adequate provision or disclosure in its books and records for any Taxes accruing in respect of any period subsequent to the period covered by such financial statements, whether or not shown as being due on any Return;
(iii) no deficiencies have been asserted in writing by any Governmental Authority with respect to Taxes of Raging River or any of its subsidiaries that have not yet been settled;
(iv) has made available to Baytex, to the extent requested by Baytex, true and complete copies of: (A) material income tax audit reports, statements of deficiencies, notices of assessment and notices of reassessment of Raging River, material closing or other agreements in respect of Taxes of Raging River; and (B) any material income tax returns for Raging River including all predecessor entities, in all cases in respect of tax years ended on commencement or after December 31, 2015;
(v) no liability (or reasonable claim the expiration of liability) shall arise under any tax sharing, tax indemnity or tax allocation agreement or arrangement to which Raging River is a party as a result of this transaction;
(vi) Raging River is not a party to any action or proceeding for assessment or collection of Taxes, nor, to the knowledge of Raging River, has such an event been asserted in writing by any Governmental Authority or threatened against Raging River or any of its assets. No waiver or extension of any statute of limitations is in effect with respect to Taxes or Returns of Raging River. No audit by Taxing Authorities of Raging River is in process or to the knowledge of Raging River, pendingTerm; and
(viib) Raging River is not the Tenant may, upon written notice to the Landlord and after paying such tax, rate, assessment or other public charge under protest, contest the validity or the amount thereof (if meanwhile such contestation will involve no forfeiture, foreclosure, escheat, sale or termination of the Landlord’s title to the leased premises or any part thereof), but upon a party final determination of any such contest the Tenant shall immediately pay and satisfy all proper costs, penalties, interest or other charges payable in connection therewith; the Landlord shall co-operate in the institution and prosecution of any such proceedings and will execute any documents required therefore; and the expense of such proceedings shall be borne by the Tenant and any refunds or rebates secured shall belong to or bound by any Tax sharing agreement, Tax indemnity agreement, Tax allocation agreement or similar agreement which will have effect after the Effective TimeTenant.
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Samples: Lease Agreement (Intellipharmaceutics International Inc.)