US TAX. 16.1 The parties intend the Transaction to constitute steps in a single plan of reorganisation of the Vendor and Telewest Jersey qualifying as a “reorganisation” within the meaning of section 368(a)(1)(C) of the US Internal Revenue Code of 1986, as amended.
16.2 The Vendor shall take no action that would cause Telewest Jersey, TCN or Telewest Limited to be regarded as a corporation or other business entity for US federal income tax purposes.
16.3 Each of New Telewest and Telewest UK shall take no action that would cause New Telewest or Telewest UK to be regarded other than as a corporation for US federal income tax purposes.
16.4 Each of New Telewest and Telewest UK shall take no action that would cause Telewest UK to be regarded other than as resident in the UK for tax purposes.
US TAX. (i) The Company will not take any action inconsistent with the treatment of the Company or any Group Company (for the purpose of this Sections 7.13 (b) (1), (2), (3) and (5), excluding the US Subsidiary) as a corporation for U.S. federal income tax purposes and will not elect for the Company or any Group Company to be treated as an entity other than a corporation for U.S. federal income tax purposes unless agreed upon by the Investors. Upon notification by the Investors that the Company or one or more of its Subsidiaries should elect to be classified as partnerships or disregarded entities for U.S. federal income tax purposes (the “Partnership Election”), the Company shall make, or shall cause to be made, the Partnership Election by filing, or by causing to be filed, Internal Revenue Service Form 8832 (or any successor form) provided that such election is in compliance with all applicable laws, and the Company shall not permit the Partnership Election to be terminated or revoked without the written consent of the Investors.
(ii) For each year in which a Partnership Election is not in effect, the Company shall determine, within forty-five (45) days from the end of each taxable year of the Company, whether any Group Company was a PFIC in such taxable year. Upon the request of any Investor, the Company shall make available to the Investors the books and records of any Group Company and its direct and indirect Subsidiaries, and to provide information to the Investors pertinent to the Group Company’s or any Subsidiary’s status or potential status as a PFIC. Upon a determination by the Company, the Investors or any taxing authority that the Group Company or any direct or indirect Subsidiary has been or is likely to become a PFIC, the Company shall, within sixty (60) days from the end of such taxable year, inform the Investors of such determination and will provide the Investors with all information reasonably available to the Group Company or any of its Subsidiaries to permit the Investors and their respective direct or indirect owners that are United States Person to (i) accurately prepare all tax returns and comply with any reporting requirements as a result of such determination and (ii) make any election (including, without limitation, a “qualified electing fund” election within the meaning of section 1295 of the Code), with respect to the Group Company or any of its direct or indirect Subsidiaries, and comply with any reporting or other requirements inciden...
US TAX. (a) Any term or provision of this clause 15 (Tax Gross Up and Indemnities) or any other term in this Agreement or any Finance Document notwithstanding, an Obligor making a payment with respect to advances made under this Agreement to a US Borrower shall not be required to pay any additional amount pursuant to clause 15.1 (Tax gross-up) or clause 15.2 (Tax indemnity) in respect of US Tax with respect to an amount payable by it on payments of interest pursuant to this Agreement to a Finance Party to the extent such US Tax is imposed because of any of the conditions described in clause 15.3(a)(i) or (ii) applies:
(i) A condition is described in this clause 15.3(a)(i) if a Finance Party fails to provide prior to the first payment to be made pursuant to this Agreement after such Finance Party becomes a Party, as relevant, (A) an IRS Form W-9, (B) an IRS Form W-8ECI, (C) an IRS Form W-8BEN claiming a complete exemption under an applicable double tax treaty from US withholding taxes on payments made pursuant to this Agreement, (D) an IRS Form W-8BEN accompanied by a statement certifying that the Finance Party is not (1) a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (2) a "10 per cent shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of the Code or (3) a "controlled foreign corporation" that is related to the US Borrower within the meaning of Section 881(c)(3)(C) of the Code) or (E) any other IRS forms or certifications that establish the Finance Party is entitled to a complete exemption from US withholding taxes on payments made pursuant to this Agreement (each such IRS form, including the statement described in clause 15.3(a)(i)(D), along with any successor forms being a "Withholding Tax Form"). Withholding Tax Forms may be provided directly or attached to an IRS Form W-8IMY, as appropriate.
(ii) A condition is described in this clause 15.3(a)(ii) if a Finance Party fails to provide subsequent Withholding Tax Forms (A) upon reasonable request of a US Borrower, unless legally unable to do so as a result of a change in (or in the interpretation, administration or application of) any law or double tax treaty, or any published practice or published concession of any relevant taxing authority subsequent to becoming a Finance Party to this Agreement, or (B) upon the Finance Party taking any actions that cause the previously provided Withholding Tax Forms to no longer adequately establish an exemption from withholding.
(b) Notwi...
US TAX. You warrant that: (a) you are a legal entity established and organized under the laws of Indonesia; (b) you will not, directly or indirectly, yourself or through third-parties, export or cause our goods and services to be exported to the United States and you do not intend for our goods and services to be used, consumed or disposed of within the United States; (c) you will not cause our goods and services to be subject to processing, distribution, assembly or manufacturing within the United States; and (d) any services provided by us will be provided to offices, facilities or other operations of you located outside of the United States, for use outside the United States.
US TAX. The parties intend that (i) the Transaction qualifies as a Section 368(a)(1)(B) reorganization, and (ii) the exchange of each of the Seller’s respective Interests for Photonics Common Stock of equivalent fair market value qualifies for tax-free treatment to each Seller under Section 354 of the Code. The parties agree that they will take no U.S. tax position inconsistent with such intended treatment. The parties agree to prepare, execute and file all required notices and forms with the U.S. Internal Revenue Service (“IRS”) as may be necessary or advisable to order to effectuate the intent of this Section 1.2, including but not limited to forms, agreements and notices under Sections 368 and 367 of the Code and IRS regulations thereunder.
US TAX. Nothing in this Agreement shall constitute or create a partnership among the Proponents or the Proponents and the Province or between any of them. Except as expressly provided for in this Section, nothing in this Agreement shall constitute any Party as the agent of any other Party, nor shall any Party have, or represent that it has, the authority or power to act or to undertake or create any obligation or responsibility on behalf or in the name of any other Party. The Parties agree that if this Agreement or the relationship established hereby constitutes a partnership as defined in Section 761(a) of the United States Internal Revenue Code, they elect to be excluded from the application of any sections of Subchapter K. of such Code, and the Operator is authorized to execute and file any forms or other documentation as is required for such election.
US TAX. 5.1. References in this Section to the “Company” shall be deemed to include each of the Company’s non-U.S. subsidiaries unless otherwise noted. References in this Section to “U.S. Investor” shall include U.S. Investors as relevant under applicable law and shall be deemed to include each of Scale, Greenspring and Insight.
5.2. Notwithstanding any other provision of this Agreement, the By-Laws or any additional financing documents to the contrary and so long as U.S. Investor holds at least 5% of the then-outstanding Preferred Shares (provided that such 5% ownership limitation shall not apply to Section 5.2.5, 5.2.6, 5.2.7, 5.2.8, and 5.2.11) of the Company on a fully-diluted basis:
5.2.1. Reserved.
5.2.2. Reserved.
5.2.3. Not later than one month following the end of the Company’s taxable year, the Company shall, at its cost, provide the Preferred Holders with the Company’s capitalization table as of the end of such taxable year and, as soon as possible following the end of the Company’s taxable year (but in no event later than forty-five (45) days following the end of each taxable year) , the Company shall, at its cost, obtain a report, prepared by U.S. counsel for the Company, regarding the Company’s status as a CFC. It is acknowledged that the references to “U.S. counsel” shall include the US Desk of EY in Tel Aviv. In addition, the Company shall, at its cost, provide U.S. Investor with access to other Company information as reasonably requested by U.S. Investor and as may be required for U.S. Investor to analyze and to determine the Company’s status as a CFC, to verify whether the Company was a CFC for each fiscal year and to determine whether U.S. Investor is required to include any amount of the Company’s undistributed earnings in its gross income for U.S. federal income tax purposes, or to allow U.S. Investor to otherwise comply with applicable U.S. federal income tax laws.
5.2.4. The Company shall make due inquiry with its U.S. tax advisors at least annually regarding the Company’s status as a CFC and whether U.S. Investor is required to include any gross income on its U.S. federal income tax return due the Company’s status as a CFC. The Company shall promptly update the Preferred Holders of any change to the Company’s shareholders that may cause the Company to be a CFC. If the Company is, in the reasonable opinion of the Company’s tax advisors, or the tax advisors of Scale, Greenspring or Insight, a CFC, the Company shall use commercially reasonable...
US TAX. (a) The Company will not (and shall procure that no Group member will), and until the Second Closing NII Telecom will procure that the Company will not (and shall procure that no Group member will), elect, without the prior written consent of (i) from the Effective Date until the Second Closing (if any), NII Telecom and (ii) from and after the Effective Date, Investor, to change its entity classification for U.S. tax purposes under the U.S. Internal Revenue Code or the U.S. Treasury Regulations thereunder (whether by becoming a “disregarded entity”, a partnership or a corporation or otherwise). The Company will (and shall procure that each Group Member will), and until the Second Closing NII Telecom will cause the Company to (and shall procure that each Group Member will) cause any newly-formed or acquired non-U.S. Subsidiaries to make “check-the-box” elections under Section 7701 of the Code, unless (A) from the Execution Date until the Second Closing (if any), NII Telecom and (B) from and after the Execution Date, Investor, have previously consented in writing to an alternative election.
(b) The Company shall (and shall procure that each Group Member shall) use commercially reasonable efforts to work with each Shareholder or any of their Affiliates, to enable each Shareholder or any of their Affiliates to timely comply with any U.S. federal income tax reporting obligations, including, but not limited to, any information reporting obligations each Shareholder or any of their Affiliates may have for U.S. or non-U.S. partnership investments and direct or indirect investments in U.S. or non-U.S. corporations, and will provide such information or reports to each Shareholder or its applicable Affiliate no later than May 31 of the following year, in the case of information or reports which can be obtained or assembled without unreasonable effort or expense at the expense of the Group, as relevant, or otherwise at the cost of each Shareholder or its applicable Affiliate.
(c) The Company will not (and shall procure that no Group Member will), and until the Second Closing NII Telecom will procure that the Company will not (and shall procure that no Group member will): (i) transfer to another entity, or otherwise take any actions with respect to, any Intercompany Debt that would create a taxable event under the U.S. Internal Revenue Code or the U.S. Treasury Regulations thereunder, or (ii) cause the Intercompany Debt not to be “disregarded” for U.S. Tax purposes, in...
US TAX. Each of the parties hereto (i) represents and warrants that it has not taken any action (nor permitted any action to be taken), and is not aware of any fact or circumstance, that would reasonably be expected to impair or impede the Intended Tax Treatment (ii) shall prepare and file all income Tax Returns consistent with, and shall not take any income Tax reporting position inconsistent with, the Intended Tax Treatment, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code, and (iii) shall prepare and file any statement required pursuant to U.S. Treasury Regulations 1.351-3.
US TAX. The Buyer or the relevant Nominated Buyer Company (as applicable) shall pay to the Seller an amount equal to any sales Tax, use Tax, direct or indirect real property transfer or gains Tax, documentary stamp Tax, or similar Taxes and any related fees imposed on or incurred by the Seller and/or any Relevant Seller's Group Company and attributable to the sale or transfer of the US Assets or transfer or assignment of the Contracts ("Transfer Taxes"). The Buyer, at its sole expense, shall (or shall procure that the relevant Nominated Buyer Company shall) timely prepare and file or cause to be timely prepared and filed with the appropriate Tax Authority any such tax returns related to Transfer Taxes as may be required by law to be filed. Prior to the filing of any such tax return, the Buyer shall (or shall procure that the relevant Nominated Buyer Company shall) provide a copy of the return to the Seller ten (10) days prior to the due date thereof for the Seller’s approval not to be unreasonably withheld, delayed, or conditioned. The Buyer shall (or shall procure that the relevant Nominated Buyer Company shall) provide confirmation of the filing and payment of any Transfer Taxes covered herein to the Seller within five (5) days after filing of any such tax return and payment of any such Tax.
