Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof. (b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement. (c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b). (d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d). (e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person. (f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 5 contracts
Samples: Credit Agreement (Blackrock Funds), Credit Agreement, Credit Agreement (BlackRock Series Fund, Inc.)
Withholding Tax Exemption. (a) All Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for by or on account of any taxobligation of the Borrower under any Credit Document shall be made without deduction or withholding for any Taxes, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise except as required by applicable law. If any applicable law (as determined in the good faith discretion of a the Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any such payment by a Withholding Agentthe Administrative Agent or the Borrower, then the applicable Withholding Administrative Agent or the Borrower shall be entitled to make such deduction or withholding.
(ii) If the Borrower or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c)the Code, if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (iC) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were the withholding or deduction is made on account of Indemnified Taxes, the sum payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment be increased as necessary so that such Bank will receive a net amount (after deduction any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 2.12(a3.10) Taxes) the applicable Recipient receives an amount equal to the amount due hereunder and, as promptly as possible thereafter, send sum it would have received had no such Bank evidence showing payment thereofwithholding or deduction been made.
(biii) Each Bank that is not incorporated under If the laws of the United States of America Borrower or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as shall be required by any applicable lawlaws other than the Code to withhold or deduct any Taxes from any payment, or then (ivA) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that as required by such Bank is entitled laws, shall withhold or make such deductions as are determined by it to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing based upon the information and delivering any such form with respect documentation it has received pursuant to it and such Bank advises subsection (e) below, (B) the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be extent required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification laws, shall timely pay the full amount withheld or representation set forth in any form furnished deducted to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as Authority in accordance with such laws, and (C) to the amount extent that the withholding or deduction is made on account of such payment or liability delivered to any Bank by Indemnified Taxes, the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise sum payable by the Administrative Agent Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to such Bank from any other source against any amount due to the Administrative Agent additional sums payable under this clause (d).
(eSection 3.10) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower Recipient receives an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank sum it would have received had no such withholding or deduction been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Personmade.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 4 contracts
Samples: Credit Agreement (Autozone Inc), 364 Day Credit Agreement (Autozone Inc), Credit Agreement (Autozone Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Effective Date, and (y) if such Bank Closing Date or the date upon which it initially becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent Agent, two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8ECI or W-8BEN or W-8BEN-Eother equivalent successor form, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or W-8BEN or other equivalent successor form, as appropriate, further undertakes to deliver to the Borrowers Borrower and the Administrative Agent Agent, two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 4 contracts
Samples: Credit Agreement (Log on America Inc), Credit Agreement (Savvis Communications Corp), Credit Agreement (Savvis Communications Corp)
Withholding Tax Exemption. (a) All payments hereunder and under any of In the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of event that a Borrower or the Administrative Agent (is a U.S. Person, each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to such Borrower (with a copy to the laws of the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the reasonable request of any Borrower or the Agent.
(b) Any Bank party hereto) will deliver that is a Foreign Bank and is entitled to an exemption from or reduction of withholding Tax under the Borrowers and the Administrative Agent two executed originals of whichever law of the following jurisdiction in which a Borrower is applicableresident for Tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any Tax treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, Document shall deliver to such Borrower (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, with a certificate copy to the effect that such Bank is not a “bank” within Agent), at the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, time or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN times prescribed by Applicable Law or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers such Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by Applicable Law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any each Bank, if reasonably requested by the Borrowers a Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers such Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers such Borrower or the Administrative Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, in the event that a Borrower is a U.S. Person, each Foreign Bank shall deliver to such Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of such Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form) claiming eligibility for benefits of an income Tax treaty to which the United States is a party that reduces or eliminates withholding Tax;
(ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any successor form);
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of such Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form);
(iv) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of such Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form); or
(v) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit such Borrower and/or the Agent to determine the withholding or deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers any Borrower or the Administrative Agent as may be necessary for the Borrowers such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.11(c), “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 4 contracts
Samples: Credit Agreement (Putnam Money Market Fund), Credit Agreement (Putnam Diversified Income Trust), Credit Agreement (Putnam Funds Trust)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Effective Date, and (y) if such Bank Closing Date or the date upon which it initially becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8ECI or W-8BEN or W-8BEN-Eother equivalent successor form, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or W-8BEN or other equivalent successor form, as appropriate, further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 4 contracts
Samples: Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Texas Telecommunications Lp), Credit Agreement (Alamosa PCS Holdings Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature At least five (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA5) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld Business Days prior to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from first date on which any amount is payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or hereunder for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending officeany Purchaser, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Purchaser that is not incorporated under the laws of the a “United States of America or a state thereof person” for United States federal income tax purposes agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers each of Seller and the Administrative related Managing Agent two executed originals a copy of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, completed United States Internal Revenue Service Form W-8BEN X-0XXX, X-0XXX or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, W-8IMY with all necessary attachments or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIsuccessor forms, certifying in each case that such Bank Purchaser is entitled to receive all payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation Purchaser further undertakes to deliver to the Borrowers each of Seller and the Administrative related Managing Agent two additional executed originals a copy of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Seller or the Administrative related Managing Agent, in each case certifying that such Bank Purchaser is entitled to receive payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in any treaty, law or regulation) regulation has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent prevents such Bank Purchaser from duly completing and delivering any such form with respect to it and such Bank Purchaser advises the Borrowers Seller and the Administrative related Managing Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition.
(b) Each Purchaser that is not a “United States person” for U.S. federal income tax purposes agrees to indemnify and hold Seller, the Managing Agents, the Purchasers and the Agent harmless in respect of any loss, cost or expense incurred by Seller, any Bank, if reasonably requested by the Borrowers Managing Agent or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent a result of, and agrees that, notwithstanding any other provision hereof, payments hereunder to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would Purchaser may be subject to U.S. deduction or withholding without indemnification by Seller for, any United States federal withholding Tax imposed income taxes, penalties, interest and other costs and losses incurred or payable by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCASeller, such Bank shall deliver to the Borrowers and the Administrative any Managing Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencea result of, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in Purchaser’s failure to submit any form furnished that is required pursuant to the Borrowers under 2.12(b) this Section 12.5 or (ii) Seller’s, any Managing Agent’s, any Purchaser’s or the Agent’s reliance on any form that such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it Purchaser has received a refund of any Taxes as to which it has received additional amounts provided pursuant to this Section 2.12, it shall pay 12.5 that is determined to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than be inaccurate in any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Personmaterial respect.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 4 contracts
Samples: Receivables Purchase Agreement (Johnsondiversey Holdings Inc), Receivables Purchase Agreement (Johnsondiversey Holdings Inc), Receivables Purchase Agreement (Johnsondiversey Inc)
Withholding Tax Exemption. (a) All payments hereunder The Agent and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent, as applicable) an original signed, properly completed Internal Revenue Service Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if the Agent or such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank Person becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Person, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent), whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding tax;
(ii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN;
(iv) to the extent a Foreign Bank is not the beneficial owner, original signed and duly completed copies of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, a certificate described in clause (iii) above, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Bank is a partnership and one or more direct or indirect partners of such Bank are claiming the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, such Bank may provide the certificate described in clause (iii) above on behalf of each such direct and indirect partner;
(v) if a payment made to a Bank hereunder or under any other Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.; or
(cvi) Notwithstanding anything any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the contrary contained in Section 2.12(a), Borrower to determine the Borrowers will not be withholding or deduction required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b)be made.
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 3 contracts
Samples: Credit Agreement (ClearBridge Energy MLP Total Return Fund Inc.), Credit Agreement (ClearBridge Energy MLP Fund Inc.), Credit Agreement (ClearBridge Energy MLP Opportunity Fund Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income (however denominated) of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such a Bank’s or Participant’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this SectionSection 2.12, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(bi) Each Bank that is incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent one executed copy of United States Internal Revenue Service Form W-9 certifying that such Bank is exempt from United States federal backup withholding tax.
(ii) Each Bank or Participant (as the case may be) that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. .
(iii) Each Bank which so delivers such documentation pursuant to Section 2.12(b)(i) and (ii) further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 3 contracts
Samples: Credit Agreement (BlackRock Series Fund II, Inc.), Credit Agreement (BlackRock Series Fund II, Inc.), Credit Agreement (BlackRock Series Fund II, Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or At least five Business Days prior to the Effective Datefirst date for payment of interest or fees hereunder to a Foreign Lender, and (y) the Foreign Lender shall, if such Bank becomes a Bank party to this Agreement after the Effective Dateapplicable, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent Agents two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service IRS Form W-8BEN or W-8BEN-EW-8ECI (or any subsequent replacement or substitute form therefor), as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect certifying that such Bank is not a “bank” within the meaning Lender can receive payment of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents Obligations without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers and the Administrative Agent Agents two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative AgentAgents, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income such taxes, unless an event (including without limitation any change in treaty, law treaty or regulationlaw) has occurred prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which would prevent such Bank prevents the Foreign Lender from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent certifying that it is not capable of receiving can receive payments without any deduction or withholding of United States federal income taxsuch taxes. In additionDuring any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) than by reason of an event (iincluding any change in treaty or law) that occurs after it becomes a breach by Lender, the Applicable Agent may withhold taxes from payments to such Bank of any certification or representation set forth in any form furnished to Foreign Lender at the applicable statutory and treaty rates, and the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount additional amounts under Section 5.8 or this Section 5.9 as a result of such withholding. Each Lender or the Agent that is organized under the laws of the United States, or any state or district thereof shall provide to the US Borrower (and in the case of a Lender, to the Applicable Agent) two duly executed copies of IRS Form W-9. In the event that any Lender or any Agent does not comply with the requirements of this Section 5.9, the relevant Borrower may withhold taxes from payments to such Lender or such Agent as required by Applicable Law. In the event of the resignation of the Applicable Agent pursuant to this clause (e) Section 12.8 hereunder, the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax successor Applicable Agent shall be subject to payment the provisions of additional amounts pursuant to this Section 2.12 5.9 in the same manner as a its predecessor Applicable Agent, and giving rise shall be required to provide the appropriate IRS Form W-8BEN or W-8ECI to the US Borrower as required in this Section 5.9. In the event that the successor Applicable Agent does not comply with the requirements of this Section 5.9, the Borrowers may withhold taxes from payments to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Personsuccessor Applicable Agent as required by Applicable Law.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 3 contracts
Samples: Revolving Credit and Security Agreement (Birks Group Inc.), Revolving Credit and Security Agreement (Birks Group Inc.), Revolving Credit and Security Agreement (Birks & Mayors Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed tax on or measured by the overall net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax tax, levy, deduction, withholding or similar charge, for the purposes of this Section, a “"Section 2.12(a2.13(a) Tax”") imposed by the United States of America, or any political subdivision or taxing authority thereof or thereintherein (each, for the purposes of this Section, an "Appropriate Taxing Authority"), except as expressly provided in this Section. Except as otherwise provided in Section 2.13(c), if any Section 2.13(a) Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, then the borrowing Borrower upon the request of such Bank shall (i) increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a2.13(a) Taxes) equal to the amount due hereunder andhereunder, (ii) pay such Section 2.13(a) Taxes to the Appropriate Taxing Authority for the account of such Bank in a timely manner, and (iii) as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Operations Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIW8ECI, certifying in each either case that such Bank is entitled to receive all payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation a Form W8ECI further undertakes to deliver to the Borrowers and the Administrative Operations Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Operations Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Operations Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a2.13(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a2.13(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(bSection 2.13(b) or (ii) such Bank’s 's failure or inability to comply with furnish under Section 2.12(b).
(d2.13(b) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable an original or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance an extension or renewal of a Participant Register, and any reasonable expenses arising therefrom Form W8ECI (or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refundsuccessor form), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borroweras applicable, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that unless such Bank is required to repay exempt from furnishing such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower Form pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i2.13(b).
Appears in 2 contracts
Samples: Credit Agreement (Master Focus Twenty Trust), Credit Agreement (Master Premier Growth Trust)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or At least five Business Days prior to the Effective Datefirst date for payment of interest or fees hereunder to a Foreign Lender, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will Foreign Lender shall deliver to the Borrowers and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service IRS Form W-8BEN or W-8BEN-EW-8ECI (or any subsequent replacement or substitute form therefor), as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect certifying that such Bank is not a “bank” within the meaning Lender can receive payment of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents Obligations without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income taxes, such taxes unless an event (including without limitation any change in treaty, treaty or law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which would prevent such Bank prevents the Foreign Lender from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent certifying that it is not capable of receiving can receive payments without any deduction or withholding of United States federal income taxsuch taxes. In additionDuring any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) than by reason of (i) any change in treaty or law that occurs after it becomes a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative AgentLender, within 10 days after demand therefor, for (i) any Taxes attributable Agent may withhold taxes from payments to such Bank that are payable or paid by Foreign Lender at the Administrative Agent in connection with any Loan Document applicable statutory and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Registertreaty rates, and any reasonable expenses arising therefrom or with respect thereto, whether or Borrowers shall not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount additional amounts under Section 5.8 or this Section 5.9 as a result of such withholding. Each Lender or Agent that is organized under the laws of the United States, or any state or district thereof shall provide to the Borrowers (and in the case of a Lender, to the Agent) two duly executed copies of IRS Form W-9. In the event that any Borrower Lender or Agent does not comply with the requirements of this Section 5.9, Borrowers may withhold taxes from payments to such Lender or Agent as required by applicable law. In the event of the resignation or removal of the Agent pursuant to this clause (e) Section 12.8 hereunder, the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax successor Agent shall be subject to payment the provisions of additional amounts pursuant to this Section 2.12 5.9 in the same manner as a its predecessor Agent, and giving rise shall be required to provide the appropriate IRS Form W-8BEN or W-8ECI to the Borrowers as required in this Section 5.9. In the event that the successor Agent does not comply with the requirements of this Section 5.9, Borrowers may withhold taxes from payments to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Personsuccessor Agent as required by applicable law.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Second Lien Loan and Security Agreement (Bon Ton Stores Inc), Loan and Security Agreement (Bon Ton Stores Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, including FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c2.13(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers Borrower under Section 2.152.16) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b2.13(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a2.13(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a2.13(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law (including FATCA) and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a2.13(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a2.13(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(bSection 2.13(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b2.13(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such BankLender’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.122.13, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 2.13 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Blackrock Funds)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by the Bank, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with in the applicable reporting requirements of FATCAevent that the Borrower is resident for tax purposes in the United States, such each Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at (in such time or times reasonably number of copies as shall be requested by the Borrowers recipient) on or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent prior to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of on which such Foreign Bank becomes a Bank under this Agreement.
Agreement (c) Notwithstanding anything to and promptly upon the contrary contained in Section 2.12(a)obsolescence, the Borrowers will not be required to make any additional payment to expiration or for the account invalidity of any Bank under Section 2.12(a) by reason of (i) a breach form or certificate previously delivered by such Foreign Bank of any certification or representation set forth in any form furnished from time to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, thereafter upon the request of such Bankthe Borrower or the Agent), shall repay whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to such Bank which the amount paid over pursuant to this clause United States is a party that reduces or eliminates withholding tax;
(eii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(plus any penalties, interest or other charges imposed by the relevant Governmental Authorityiii) in the event case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause not (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (eA) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligationbank” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 87l(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.
Appears in 2 contracts
Samples: Credit Agreement (Highland Funds I), Credit Agreement (Highland Funds I)
Withholding Tax Exemption. (a) All payments hereunder Each Payee shall furnish from time to time to the Borrower or to such other Person(s) as the Borrower may designate, such forms, certificates and under documentation (including Internal Revenue Service Forms W-8 and W-9) that the Payee is legally entitled to furnish and as may be necessary or appropriate to obtain any reduction of the other Loan Documents shall be made free and clear of and without or exemption from any deduction for or on account of any tax, levy, deduction, withholding, withholding or other similar charge of whatever nature tax imposed by any governmental authority on payments made under this Agreement or any Loan Document (a “Tax”)any such form, unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each certificate and documentation, a “Withholding AgentCertificate”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as Payee required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers Borrower a valid Withholding Certificate pursuant to Section 2.22(a) shall deliver such valid Withholding Certificate as follows: (A) each Payee which is a party hereto on the Closing Date shall deliver such valid Withholding Certificate at least five Business Days prior to the first date on which any interest or fees are payable by the Borrower hereunder for the account of such Payee; and (B) each Payee becoming a Payee as a result of an assignment shall deliver such valid Withholding Certificate at least five Business Days before the Administrative Agent two effective date of such assignment. Each Payee shall deliver to the Borrower additional executed originals of any such form Withholding Certificates (or a successor formforms) or other documentation on or before the date that such documentation Withholding Certificate expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation Withholding Certificate so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this AgreementBorrower.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.), Revolving Credit and Term Loan Agreement (Open Link Financial, Inc.)
Withholding Tax Exemption. At least five (a5) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld Business Days prior to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes first date on which interest or fees are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or hereunder for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which any Lender, each Lender (xif any) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America America, or a state thereof (each, a "Non-U.S. Lender"), agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals (2) duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each either case that such Bank Lender is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxestaxes and an Internal Revenue Service Form W-8 or W-9, certifying that such Lender is entitled to a complete exemption from United States backup withholding tax. Each Bank which so delivers such documentation Non-U.S. Lender further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two (x) renewals or additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or and (y) after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, additional forms or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, . All forms or amendments or renewals provided for in each case certifying the preceding sentence shall certify that such Bank Lender is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the If a Lender does not provide duly executed forms to Borrower and Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at within the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation periods set forth in any form furnished to the Borrowers under 2.12(b) preceding paragraph, Borrower or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of Borrower has not already done so) withhold taxes from payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank Lender at the applicable statutory rates and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, Borrower shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank not be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant as a result of such withholding. Upon the reasonable request of Borrower or Administrative Agent, each Lender that has not provided the forms or other documents, as provided above, on the basis of being a "United States person," shall submit to this Section 2.12 Borrower and giving rise Administrative Agent a certificate or other evidence to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes effect that it deems confidential) to any Borrower or any other Personis such a "United States person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)."
Appears in 2 contracts
Samples: Credit Agreement (MDC Holdings Inc), Credit Agreement (MDC Holdings Inc)
Withholding Tax Exemption. (a) All payments hereunder and under If any Lender is a "foreign person" within the meaning of the other Loan Documents Code, such Lender shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in deliver to the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”i), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((xA) if such Bank is Lender qualifies for an original Bank party to this Agreementexemption from, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documentsreduction of, United States withholding tax under a tax treaty, a properly completed and executed Internal Revenue Service Form W-8BEN 1001 (or W-8BEN-E, as applicableapplicable successor form) before the payment of any interest in the first calendar year and in each third succeeding calendar year during which interest may be paid under this Agreement, (iiB) if such Lender qualifies for an exemption from United States withholding tax for interest paid under this Agreement because it is effectively connected with a United States trade or business of such Lender, two properly completed and executed copies of Internal Revenue Service Form 4224 (or applicable successor form) before the payment of any interest is due in the case first taxable year of such Bank claiming the benefits Lender, and in each succeeding taxable year of the exemption for portfolio such Lender, during which interest may be paid under Section 881(cthis Agreement, or (C) of the Code, a certificate to the effect that if such Bank Lender is not a “"bank” within the meaning of " as defined in Section 881(c)(3)(A) of the Code, a “10 percent shareholder” properly completed and executed Internal Revenue Service Form W- 8 (or applicable successor form) before the payment of any Borrower interest is due in the first taxable year of such Lender, and in each succeeding taxable year of such Lender, during which interest may be paid under this Agreement, certifying that such Lender is a foreign corporation, partnership, estate or trust, together with a certificate of a duly authorized officer representing that such Lender is not a "bank" for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning of Section 881(c)(3)(B871(h)(3)(B) of the Code, or ) of the Borrower and is not a “controlled foreign corporation” described in corporation related to the Borrower (within the meaning of Section 881(c)(3)(C864(d)(4) of the Code), and United States Internal Revenue Service Form W-8BEN (ii) such other form or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether establish or not such Bank is subject to backup substantiate exemption from, or reduction of, United States withholding tax under the Code or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes other laws of the immediately preceding sentence, “FATCA” shall include amendments made United States. Each Lender agrees to FATCA after notify the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account Agent of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of change in circumstances which would modify or render invalid any certification claimed exemption or representation set forth in reduction. If any form furnished or document referred to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
subsection (e) If any Bank determinesrequires the disclosure of information, in its sole discretion exercised in good faithother than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form 1001, 4224 or W-8 (or applicable successor forms) (or the related certificate described above), that it has received a refund of any Taxes as the Lender reasonably considers to which it has received additional amounts pursuant to this Section 2.12be confidential, it the Lender shall pay give notice thereof to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed obligated to require any Bank to make available its Tax returns (include in such form or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Persondocument such confidential information.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Integrated Health Services Inc), Revolving Credit Agreement (Integrated Health Services Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Restatement Effective Date, and (y) if such Bank Date or the date upon which it initially becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8BEN W-8BEN, W-8EIC or W-8BEN-EW-8 or other equivalent documents, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8BEN, W-8EIC or W-8 or other equivalent documents, as appropriate, further undertakes to deliver to the Borrowers Borrower and the Administrative Agent Agent, to the extent it may legally do so, two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Credit Agreement (Net2000 Communications Inc), Credit Agreement (Net2000 Communications Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax Each Lender or branch profits Tax imposed Issuer shall, (1) on or measured by about the net income of a Bank or its lending office by the jurisdiction in which date such Bank is incorporated or has its principal office Lender or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank Issuer becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, and (2) from time to time thereafter if, in each case of (1) and (2), reasonably requested in writing by the Parent or the Administrative Agent, as promptly as is reasonable provide the Administrative Agent and the Parent with the executed copies of forms prescribed by the United States Internal Revenue Service or other relevant Governmental Authority certifying as to the status of such Lender or such Issuer for purposes of determining exemption from, or reduced rate applicable to, withholding taxes with respect to payments to be made to such Lender or such Issuer under this Agreement and the other Loan Documents.
(ii) Without limiting the generality of the foregoing,
(A) If a payment made to a Lender or Issuer under this Agreement or any other Loan Documents would be subject to United States Federal withholding tax imposed by FATCA if such Lender or such Issuer fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or such Issuer shall deliver to the Administrative Agent and the Parent on or prior to about the Effective Date, and (y) if date such Bank Lender or such Issuer becomes a Bank party to this Agreement Agreement, at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Agent or the Parent, 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 Administrative Agent or the Parent as may be necessary for such party to comply with its obligations under FATCA, to determine that such Lender or such Issuer has complied with its obligations under FATCA or to determine the amount to deduct and withhold from such payment; solely for purposes of this clause (g), “FATCA” shall include any amendments made to FATCA after the Effective Datedate of this Agreement;
(B) Any Lender or Issuer, if reasonably requested by the Administrative Agent or the Parent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Administrative Agent or the Parent as will enable the Administrative Agent or the Parent to determine whether or not such Lender or such Issuer is subject to backup withholding or information reporting requirements;
(C) Each Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent and the Parent on or prior to the date on which such Bank Lender becomes a Bank party heretoLender under this Agreement or when reasonably requested by the Administrative Agent or the Parent, executed copies of IRS Form W-9 (or any successor form) will certifying that such Lender is exempt from U.S. federal backup withholding tax; and
(D) Each Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrowers Administrative Agent and the Parent on or prior to the date on which such Lender becomes a Lender under this Agreement or when reasonably requested by the Administrative Agent two executed originals of whichever of or the following is applicableParent, (ix) executed copies of any applicable IRS Form W-8, (y) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the CodeCode (a “U.S. Tax Compliance Certificate”), and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iiiz) to the extent such Bank Lender is not a partnership or is acting as an intermediary for the beneficial ownerowner of the payments to be made, United States Internal Revenue Service executed copies of an applicable IRS Form W-8IMYW-8, accompanied by additional forms or certifications a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each partner or beneficial owner, as required by applicable lawapplicable; provided that if such Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; provided that a Lender or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled Issuer shall not be obligated to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of provide any such form specified in clause (or a successor formi) or other documentation on (ii) if such Lender or before the date such Issuer is not legally able to do so. Each Lender and Issuer agrees that such documentation if any form or certification it previously delivered expires or becomes obsolete or after the occurrence of inaccurate in any event requiring a change in the most recent documentation so delivered by itrespect, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any it shall update such form with respect to it and such Bank advises the Borrowers and or certification or promptly notify the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes Parent in writing of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or its legal inability to comply with Section 2.12(b)do so.
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Revolving Credit Agreement (Air Products & Chemicals Inc /De/), Revolving Credit Agreement (Air Products & Chemicals Inc /De/)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party heretounder this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by the Bank, and from time to time thereafter upon the request of the Borrower or Agent.
(b) will Any Foreign Bank that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent, including without limitation, as will enable the Borrower or the Agent to determine whether or not the Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, each Foreign Bank shall deliver to the Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent), whichever of the following is applicable, :
(i) in the case original signed and duly completed copies of such Bank Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E (or successor form) claiming the eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding tax;
(ii) original signed and exemption from withholding with respect to payments duly completed copies of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W-8ECI (or W-8BEN-E, as applicable, successor form);
(iiiii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a written certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any the Borrower within the meaning of Section 881(c)(3)(B871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Code, Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and United States (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable, E (iiior successor form);
(iv) to the extent such a Foreign Bank is not the beneficial owner, United States original signed and duly completed copies of Internal Revenue Service Form W-8IMYW-8IMY (or successor form), accompanied by additional forms Internal Revenue Service Form W-8ECI (or certifications successor form), Internal Revenue Service From W-8BEN (or successor form), Internal Revenue Service Form W-8BEN-E (or successor form), a U.S. Tax Compliance Certificate, Internal Revenue Service Form W-9 (or successor form) and/or other certification documents from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case applicable; provided that such if the Bank is entitled to receive all payments under a partnership and one or more direct or indirect partners of the Loan Documents without deduction or withholding Bank are claiming the portfolio interest exemption, the Bank may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; or
(v) any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such other form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law as a basis for claiming exemption from or reasonably requested a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent Borrower to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for For purposes of the immediately preceding sentencethis clause (c) of Section 2.12 hereof, “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Credit Agreement (NexPoint Capital, Inc.), Credit Agreement (NexPoint Capital, Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be Any Foreign Bank that is entitled to make such deduction an exemption from or reduction of withholding and shall timely pay tax under the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank the Borrower is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or resident for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of Americatax purposes, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) times prescribed by Applicable Law or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by Applicable Law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any each Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with in the applicable reporting requirements of FATCAevent that the Borrower is resident for tax purposes in the United States, such each Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at (in such time or times reasonably number of copies as shall be requested by the Borrowers recipient) on or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent prior to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any on which such Foreign Bank becomes a Bank under Section 2.12(a) by reason of this Agreement (i) a breach by such Bank of any certification or representation set forth in any form furnished and from time to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, thereafter upon the request of the Borrower or the Agent, but only if such BankForeign Bank is legally entitled to do so), shall repay whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to such Bank which the amount paid over pursuant to this clause United States is a party;
(eii) duly completed copies of Internal Revenue Service Form W-8ECI;
(plus any penalties, interest or other charges imposed by the relevant Governmental Authorityiii) in the event case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause not (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (eA) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligationbank” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower to determine the withholding or deduction required to be made.
Appears in 2 contracts
Samples: Credit Agreement (Nuveen Global High Income Fund), Credit Agreement (Neuberger Berman Real Estate Securities Income Fund Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by the Bank, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with in the applicable reporting requirements of FATCAevent that the Borrower is resident for tax purposes in the United States, such each Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at (in such time or times reasonably number of copies as shall be requested by the Borrowers recipient) on or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent prior to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of on which such Foreign Bank becomes a Bank under this Agreement.
Agreement (c) Notwithstanding anything to and promptly upon the contrary contained in Section 2.12(a)obsolescence, the Borrowers will not be required to make any additional payment to expiration or for the account invalidity of any Bank under Section 2.12(a) by reason of (i) a breach form or certificate previously delivered by such Foreign Bank of any certification or representation set forth in any form furnished from time to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, thereafter upon the request of such Bankthe Borrower or the Agent), shall repay whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to such Bank which the amount paid over pursuant to this clause United States is a party that reduces or eliminates withholding tax;
(eii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(plus any penalties, interest or other charges imposed by the relevant Governmental Authorityiii) in the event case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause not (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (eA) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligationbank” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.
Appears in 2 contracts
Samples: Credit Agreement (Western Asset Global High Income Fund Inc.), Credit Agreement (Highland Credit Strategies Fund)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated created or organized under the laws of the United States of America or a state political subdivision thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will shall deliver to Borrower and Agent no later than the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicableClosing Date (or, (i) in the case of a Lender which becomes a Lender pursuant to Section 11.13, the date upon which such Bank claiming the benefits of an income tax treaty to which the United States is Lender becomes a party hereto) a true and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) accurate certificate executed in the case duplicate by a duly authorized officer of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the CodeLender, in a certificate form satisfactory to Borrower and Agent, to the effect that such Bank Lender is not a “bank” within capable, under the meaning provisions of Section 881(c)(3)(Aan applicable treaty concluded by the United States of America (in which case the certificate shall be accompanied by three (3) accurate and complete duly executed originals of Form W-8BEN of the Code, a “10 percent shareholder” of any Borrower within the meaning of Internal Revenue Service) or under Section 881(c)(3)(B) 1442 of the Code, or a “controlled foreign corporation” described Internal Revenue Code (in Section 881(c)(3)(Cwhich case the certificate shall be accompanied by three (3) accurate and complete duly executed originals of Form W-8ECI of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-EService), as applicableof receiving payments of principal, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents interest and fees hereunder without deduction or withholding of any United States federal income taxestax. Further, if at any time a Lender changes its applicable lending office or selects an additional applicable lending office, it shall, at the same time or promptly thereafter, but only to the extent the certificate and forms previously delivered by it hereunder are no longer applicable or effective, deliver to Borrower and Agent in replacement for, or in addition to, the certificate and forms previously delivered by it hereunder, a true and accurate certificate executed in duplicate by a duly authorized officer of such Lender accompanied by three (3) accurate and complete duly executed originals of either Form W-8BEN of the Internal Revenue Service or Form W-8ECI of the Internal Revenue Service, whichever is applicable, indicating that such Lender is entitled to receive payments of principal, interest and fees for the account of such changed or additional applicable lending office under this Agreement without deduction or withholding of United States federal tax. Each Bank which so delivers such documentation Lender further undertakes agrees to deliver to the Borrowers Borrower and the Administrative Agent two additional a true and accurate certificate executed in duplicate by a duly authorized officer of such Lender accompanied by three (3) accurate and complete duly executed originals of any such either Form W-8BEN of the Internal Revenue Service or Form W-8ECI of the Internal Revenue Service, whichever is appropriate, substantially in a form (satisfactory to Borrower and Agent, before or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after promptly upon the occurrence of any event requiring a change in the most recent documentation so certificate or Internal Revenue Service form previously delivered by itit to Borrower and Agent pursuant to this Section 2.03(j). Further, each Lender which delivers a certificate accompanied by Form W-8BEN of the Internal Revenue Service covenants and agrees to deliver to Borrower and Agent within fifteen (15) days prior to January 1, 2003, and every third (3rd) anniversary of such date thereafter, on which this Agreement is still in effect, another such certificate and three (3) accurate and complete original signed copies of Form W-8BEN (or as otherwise any successor form or forms required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by under the Borrowers Internal Revenue Code or the Administrative Agentapplicable regulations promulgated thereunder), and each Lender that delivers a certificate accompanied by Form W-8ECI of the Internal Revenue Service covenants and agrees to deliver to Borrower and Agent within fifteen (15) days prior to the beginning of each subsequent taxable year of such Lender during which this Agreement is still in each case certifying that effect, another such Bank is entitled to receive payments certificate and three (3) accurate and complete original signed copies of Internal Revenue Service Form W-8ECI (or any successor form or forms required under the Loan Documents without deduction Internal Revenue Code or withholding the applicable regulations promulgated hereunder). If (i) any Lender is required under this Section 2.03(j) to provide a certificate or other evidence described above and fails to deliver to Borrower and Agent such certificate or other evidence or (ii) any Lender delivers a certificate to the effect that, as a result of any United States federal income taxes, unless an event (including without limitation the adoption of or any change in any law, treaty, law rule, regulation, guideline or regulation) has occurred prior to determination of a Governmental Authority after the date on which any such delivery would otherwise be required which renders all Lender became a party hereto, such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it Lender is not capable of receiving payments of interest hereunder without any deduction or withholding of United States federal income tax. In additiontax as specified therein and that it is not capable of recovering the full amount of the same from a source other than Borrower, any Bankthen, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and extent required by law, as the Administrative Agent at sole consequence of such Lender's failure to deliver the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained certificate described in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by above or such Bank Lender's delivery of any certification or representation set forth the certificate described in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure above, Borrower shall be entitled to deduct or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify withhold taxes from the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable payments owed to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d)Lender.
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Credit Agreement (Manufactured Home Communities Inc), Credit Agreement (Manufactured Home Communities Inc)
Withholding Tax Exemption. Each Lender which is not a United States person (aas such term is defined in Section 7701(a)(30) All payments hereunder and under any of the other Loan Documents shall be made free Code) agrees to deliver to Borrower and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, Closing Date (i) in the case two complete executed copies of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN 4224 or W-8BEN-E, as applicable, Form 1001 (or successor forms thereto) certifying such Lender's entitlement to an exemption from United States withholding tax with respect to payment to be made under this Agreement or (ii) in if the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank Lender is not a “"bank” " within the meaning of Section 881(c)(3)(A) of the CodeCode and cannot deliver either Form 4224 or Form 1001, a “10 percent shareholder” certificate in a form approved by the Administrative Agent and two complete executed copies of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN W-8 (or W-8BEN-Esuccessor form thereto) certifying such Lender's entitlement to exemption from such withholding. In addition, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes Lender agrees to deliver to the Borrowers Borrower and the Administrative Agent two additional executed originals updates or replacements to the foregoing forms and certificates from time to time when due to the lapse of time, the change in circumstances or otherwise, any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes certificate previously provided under this Section 2.5.4. shall become obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled inaccurate. Each Lender agrees to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers immediately notify Borrower and the Administrative Agent in the event that it is not capable unable to certify that it is entitled to an exemption from withholding as aforesaid. Notwithstanding any provision of receiving payments without any deduction Section 2.5.3 or withholding of United States federal income taxthis Section 2.5.4. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and contrary, Borrower shall be entitled, to the Administrative Agent at the time or times prescribed extent required by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount any Requirement of Law, to deduct and withhold income or similar taxes imposed by the United States (or any other Governmental Authority) from such payment. Solely for purposes of the immediately preceding sentenceinterest, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to fees or other amounts payable hereunder for the account of any Bank under Section 2.12(aLender which is not a United States person (as defined above) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished for U.S. Federal income tax purposes to the Borrowers extent that such Lender has not provided to Borrower forms establishing an exemption therefrom as aforesaid and Borrower shall not be obligated to pay any amounts under 2.12(b) this Section 2.5.4. hereof in respect of income or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid withholding taxes imposed by the Administrative Agent in connection with United States if any Loan Document and (ii) any Taxes attributable Lender has not provided the forms required to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts provided pursuant to this Section 2.122.5.4. hereof or, it shall pay in the case of a payment, other than interest, to the applicable Borrower an amount equal to such refund (but only a Lender to the extent of payments made under this Section with respect to the Taxes giving rise to that any such refund), net of all out-of-pocket expenses (including Taxes) forms do not establish a complete exemption from withholding of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Persontaxes.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Term Loan and Acquisition Credit Agreement (Alarmguard Holdings Inc), Term Loan and Acquisition Credit Agreement (Alarmguard Holdings Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, including FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c2.13(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers Borrower under Section 2.152.16) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b2.13(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a2.13(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a2.13(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law (including FATCA) and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a2.13(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a2.13(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(bSection 2.13(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b2.13(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.122.13, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 2.13 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Credit Agreement (Master Investment Portfolio), Credit Agreement (Blackrock Funds)
Withholding Tax Exemption. (a) All payments At least five Business Days prior to the first date for payment of interest or fees hereunder to a Foreign Lender, the Foreign Lender shall, if applicable, deliver to the US Borrower and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent two duly completed copies of IRS Form W-8BEN, W-8BEN-E or W-8ECI (each a “Withholding Agent”or any subsequent replacement or substitute form therefor), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent certifying that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes Lender can receive payment of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents Obligations without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers US Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers US Borrower or the Administrative Agent, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income such taxes, unless an event (including without limitation any change in treaty, law treaty or regulationlaw) has occurred prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which would prevent such Bank prevents the Foreign Lender from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent certifying that it is not capable of receiving can receive payments without any deduction or withholding of United States federal income taxsuch taxes. In additionDuring any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, other than by reason of an event (including any Bankchange in treaty or law) that occurs after it becomes a Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable may withhold US Taxes from payments to such Foreign Lender at the applicable statutory and treaty rates, and the Borrowers or the Administrative Agent to determine whether or shall not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to under Section 5.8 or this Section 2.12 5.9 as a result of such withholding. Each Lender or Agent that is organized under the laws of the United States, or any state or district thereof shall provide to the US Borrower (and giving rise in the case of a Lender, to the Administrative Agent) two duly executed copies of IRS Form W-9. In the event that any Lender or any Agent does not comply with the requirements of this Section 5.9, the US Borrower may withhold taxes from payments to such refund had not been deducted, withheld Lender or otherwise imposed and such Agent as required by Applicable Law. In the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes event of determining withholding Taxes imposed under FATCA, from and after the effective date resignation of this Agreement, each Borrower and the Administrative Agent shall treat (and pursuant to Section 12.8 hereunder, the Banks hereby authorize the successor Administrative Agent shall be subject to treat) the provisions of this Agreement as not qualifying Section 5.9 in the same manner as a “grandfathered obligation” within its predecessor Administrative Agent, and shall be required to provide the meaning appropriate IRS Form W-8BEN, W-8BEN-E or W-8ECI to the US Borrower as required in this Section 5.9. In the event that the successor Administrative Agent does not comply with the requirements of Treasury Regulation this Section 1.1471-2(b)(2)(i)5.9, the US Borrower may withhold US Taxes from payments to such successor Administrative Agent as required by Applicable Law.
Appears in 2 contracts
Samples: Term Loan and Security Agreement (Birks Group Inc.), Term Loan and Security Agreement (Birks Group Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be Any Foreign Bank that is entitled to make such deduction an exemption from or reduction of withholding and shall timely pay tax under the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank the Borrower is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or resident for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of Americatax purposes, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Operations Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Operations Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Operations Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Operations Agent as will enable the Borrowers Borrower or the Administrative Operations Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with in the applicable reporting requirements of FATCAevent that the Borrower is resident for tax purposes in the United States, such each Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Operations Agent at the time or times prescribed by law and at (in such time or times reasonably number of copies as shall be requested by the Borrowers recipient) on or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent prior to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any on which such Foreign Bank becomes a Bank under Section 2.12(a) by reason of this Agreement (i) a breach by such Bank of any certification or representation set forth in any form furnished and from time to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, thereafter upon the request of the Borrower or the Operations Agent, but only if such BankForeign Bank is legally entitled to do so), shall repay whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to such Bank which the amount paid over pursuant to this clause United States is a party;
(eii) duly completed copies of Internal Revenue Service Form W-8ECI;
(plus any penalties, interest or other charges imposed by the relevant Governmental Authorityiii) in the event case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause not (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (eA) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligationbank” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.
Appears in 2 contracts
Samples: Credit Agreement (Baron Select Funds), Credit Agreement (Baron Select Funds)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated created or organized under the laws of the United States of America or a state political subdivision thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will shall deliver to Borrower and Agent no later than the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicableClosing Date (or, (i) in the case of a Lender which becomes a Lender pursuant to Section 11.13, the date upon which such Bank claiming the benefits of an income tax treaty to which the United States is Lender becomes a party hereto) a true and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) accurate certificate executed in the case duplicate by a duly authorized officer of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the CodeLender, in a certificate form satisfactory to Borrower and Agent, to the effect that such Bank Lender is not a “bank” within capable, under the meaning provisions of Section 881(c)(3)(Aan applicable treaty concluded by the United States of America (in which case the certificate shall be accompanied by three (3) accurate and complete duly executed originals of Form W-8BEN of the Code, a “10 percent shareholder” of any Borrower within the meaning of Internal Revenue Service) or under Section 881(c)(3)(B) 1442 of the Code, or a “controlled foreign corporation” described Internal Revenue Code (in Section 881(c)(3)(Cwhich case the certificate shall be accompanied by three (3) accurate and complete duly executed originals of Form W-8ECI of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-EService), as applicableof receiving payments of principal, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents interest and fees hereunder without deduction or withholding of any United States federal income taxestax. Further, if at any time a Lender changes its applicable lending office or selects an additional applicable lending office, it shall, at the same time or promptly thereafter, but only to the extent the certificate and forms previously delivered by it hereunder are no longer applicable or effective, deliver to Borrower and Agent in replacement for, or in addition to, the certificate and forms previously delivered by it hereunder, a true and accurate certificate executed in duplicate by a duly authorized officer of such Lender accompanied by three (3) accurate and complete duly executed originals of either Form W-8BEN of the Internal Revenue Service or Form W-8ECI of the Internal Revenue Service, whichever is applicable, indicating that such Lender is entitled to receive payments of principal, interest and fees for the account of such changed or additional applicable lending office under this Agreement without deduction or withholding of United States federal tax. Each Bank which so delivers such documentation Lender further undertakes agrees to deliver to the Borrowers Borrower and the Administrative Agent two additional a true and accurate certificate executed in duplicate by a duly authorized officer of such Lender accompanied by three (3) accurate and complete duly executed originals of any such either Form W-8BEN of the Internal Revenue Service or Form W-8ECI of the Internal Revenue Service, whichever is appropriate, substantially in a form (satisfactory to Borrower and Agent, before or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after promptly upon the occurrence of any event requiring a change in the most recent documentation so certificate or Internal Revenue Service form previously delivered by itit to Borrower and Agent pursuant to this Section 2.03(j). Further, each Lender which delivers a certificate accompanied by Form W-8BEN of the Internal Revenue Service covenants and agrees to deliver to Borrower and Agent within fifteen (15) days prior to January 1, 2005, and every third (3rd) anniversary of such date thereafter, on which this Agreement is still in effect, another such certificate and three (3) accurate and complete original signed copies of Form W-8BEN (or as otherwise any successor form or forms required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by under the Borrowers Internal Revenue Code or the Administrative Agentapplicable regulations promulgated thereunder), and each Lender that delivers a certificate accompanied by Form W-8ECI of the Internal Revenue Service covenants and agrees to deliver to Borrower and Agent within fifteen (15) days prior to the beginning of each subsequent taxable year of such Lender during which this Agreement is still in each case certifying that effect, another such Bank is entitled to receive payments certificate and three (3) accurate and complete original signed copies of Internal Revenue Service Form W-8ECI (or any successor form or forms required under the Loan Documents without deduction Internal Revenue Code or withholding the applicable regulations promulgated hereunder). If (i) any Lender is required under this Section 2.03(j) to provide a certificate or other evidence described above and fails to deliver to Borrower and Agent such certificate or other evidence or (ii) any Lender delivers a certificate to the effect that, as a result of any United States federal income taxes, unless an event (including without limitation the adoption of or any change in any law, treaty, law rule, regulation, guideline or regulation) has occurred prior to determination of a Governmental Authority after the date on which any such delivery would otherwise be required which renders all Lender became a party hereto, such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it Lender is not capable of receiving payments of interest hereunder without any deduction or withholding of United States federal income tax. In additiontax as specified therein and that it is not capable of recovering the full amount of the same from a source other than Borrower, any Bankthen, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and extent required by law, as the Administrative Agent at sole consequence of such Lender's failure to deliver the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained certificate described in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by above or such Bank Lender's delivery of any certification or representation set forth the certificate described in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure above, Borrower shall be entitled to deduct or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify withhold taxes from the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable payments owed to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d)Lender.
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 2 contracts
Samples: Credit Agreement (Manufactured Home Communities Inc), Term Loan Agreement (Manufactured Home Communities Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed tax on or measured by the overall net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax tax, levy, deduction, withholding or similar charge, for the purposes of this Section, a “"Section 2.12(a2.13(a) Tax”") imposed by the United States of America, or any political subdivision or taxing authority thereof or thereintherein (each, for the purposes of this Section, an "Appropriate Taxing Authority"), except as expressly provided in this Section. Except as otherwise provided in Section 2.13(c), if any Section 2.13(a) Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, then the borrowing Borrower upon the request of such Bank shall (i) increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a2.13(a) Taxes) equal to the amount due hereunder andhereunder, (ii) pay such Section 2.13
(a) Taxes to the Appropriate Taxing Authority for the account of such Bank in a timely manner, and (iii) as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Operations Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIW8ECI, certifying in each either case that such Bank is entitled to receive all payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation a Form W8ECI further undertakes to deliver to the Borrowers and the Administrative Operations Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Operations Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Operations Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a2.13(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a2.13(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(bSection 2.13(b) or (ii) such Bank’s 's failure or inability to comply with furnish under Section 2.12(b).
(d2.13(b) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable an original or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance an extension or renewal of a Participant Register, and any reasonable expenses arising therefrom Form W8ECI (or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refundsuccessor form), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borroweras applicable, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that unless such Bank is required to repay exempt from furnishing such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower Form pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i2.13(b).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be Any Foreign Bank that is entitled to make such deduction an exemption from or reduction of withholding and shall timely pay tax under the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank the Borrower is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or resident for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of Americatax purposes, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) times prescribed by Applicable Law or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by Applicable Law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any each Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States:
(a) each Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN-E or Internal Revenue Service Form W-8BEN (as applicable) claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(ii) duly completed copies of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) duly completed copies of Internal Revenue Service Form W-8BEN-E or Internal Revenue Service Form W-8BEN-E (as applicable);
(iv) to the extent a Foreign Bank is not the beneficial owner, two duly executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN-E, Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-9, a U.S. Tax Compliance Certificate, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank shall provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; or
(v) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower to determine the withholding or deduction required to be made;
(b) each Bank that is not a Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent, but only if such Bank is legally entitled to do so), duly completed copies of Internal Revenue Service Form W-9 or successor form; and
(c) if a payment made to a Foreign Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Foreign Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Foreign Bank has complied with such Foreign Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis clause (c), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything Agreement and any fiscal or regulatory legislation, rules or practices adopted pursuant to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent intergovernmental agreement entered into in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with Sections 1471 through 1474 of the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d)Internal Revenue Code.
(e) If any Bank determines, 8. Section 1.01 of the Credit Agreement is hereby amended by inserting the following defined terms in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).their proper alphabetical order:
Appears in 1 contract
Samples: Credit Agreement (Credit Suisse High Yield Bond Fund)
Withholding Tax Exemption. (a) All payments hereunder and under If any Lender is a "foreign person" within the meaning of the other Loan Documents Code, such Lender shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in deliver to the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”i), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((xA) if such Bank is Lender qualifies for an original Bank party to this Agreementexemption from, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documentsreduction of, United States withholding tax under a tax treaty, a properly completed and executed Internal Revenue Service Form W-8BEN 1001 (or W-8BEN-E, as applicableapplicable successor form) before the payment of any interest in the first calendar year and in each third succeeding calendar year during which interest may be paid under this Agreement, (iiB) if such Lender qualifies for an exemption from United States withholding tax for interest paid under this Agreement because it is effectively connected with a United States trade or business of such Lender, two properly completed and executed copies of Internal Revenue Service Form 4224 (or applicable successor form) before the payment of any interest is due in the case first taxable year of such Bank claiming the benefits Lender, and in each succeeding taxable year of the exemption for portfolio such Lender, during which interest may be paid under Section 881(cthis Agreement, or (C) of the Code, a certificate to the effect that if such Bank Lender is not a “"bank” within the meaning of " as defined in Section 881(c)(3)(A) of the Code, a “10 percent shareholder” properly completed and executed Internal Revenue Service Form W-8 (or applicable successor form) before the payment of any Borrower interest is due in the first taxable year of such Lender, and in each succeeding taxable year of such Lender, during which interest may be paid under this Agreement, certifying that such Lender is a foreign corporation, partnership, estate or trust, together with a certificate of a duly authorized officer representing that such Lender is not a "bank" for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning of Section 881(c)(3)(B871(h)(3)(B) of the Code, or ) of the Borrower and is not a “controlled foreign corporation” described in corporation related to the Borrower (within the meaning of Section 881(c)(3)(C864(d)(4) of the Code), and United States Internal Revenue Service Form W-8BEN (ii) such other form or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether establish or not such Bank is subject to backup substantiate exemption from, or reduction of, United States withholding tax under the Code or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes other laws of the immediately preceding sentence, “FATCA” shall include amendments made United States. Each Lender agrees to FATCA after notify the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account Agent of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of change in circumstances which would modify or render invalid any certification claimed exemption or representation set forth in reduction. If any form furnished or document referred to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
subsection (e) If any Bank determinesrequires the disclosure of information, in its sole discretion exercised in good faithother than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form 1001, 4224 or W-8 (or applicable successor forms) (or the related certificate described above), that it has received a refund of any Taxes as the Lender reasonably considers to which it has received additional amounts pursuant to this Section 2.12be confidential, it the Lender shall pay give notice thereof to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed obligated to require any Bank to make available its Tax returns (include in such form or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Persondocument such confidential information.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Integrated Health Services Inc)
Withholding Tax Exemption. (a) All payments hereunder The Agent and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent, as applicable) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if the Agent or such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank Person becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Person, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent), whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding tax;
(ii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN;
(iv) to the extent a Foreign Bank is not the beneficial owner, original signed and duly completed copies of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, a certificate described in clause (iii) above, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Bank is a partnership and one or more direct or indirect partners of such Bank are claiming the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, such Bank may provide the certificate described in clause (iii) above on behalf of each such direct and indirect partner;
(v) if a payment made to a Bank hereunder or under any other Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.; or
(cvi) Notwithstanding anything any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the contrary contained in Section 2.12(a), Borrower to determine the Borrowers will not be withholding or deduction required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b)be made.
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. At least five (a5) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld Business Days prior to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes first date on which interest or fees are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or hereunder for the account of such any Bank, each Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (xif any) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America America, or a state thereof thereof, agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals (2) duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN 1001 or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI4224, certifying in each either case that such Bank is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxestaxes and an Internal Revenue Service Form W-8 or W-9 entitling such Bank to receive a complete exemption from United States tax backup withholding. Each Bank which so delivers such documentation a Form 1001 or 4224 further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two (2) additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires (currently, three (3) successive calendar years for Form 1001 and one (1) calendar year for Form 4224) or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the If a Bank does not provide duly executed forms to Borrower and Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at within the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation periods set forth in any form furnished to the Borrowers under 2.12(b) preceding paragraph, Borrower or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank Administrative Agent shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable withhold taxes from payments to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable statutory rates and Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank not be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant as a result of such withholding. Upon the reasonable request of Borrower or Administrative Agent, each Bank that has not provided the forms or other documents, as provided above, on the basis of being a "United States person," shall submit to this Section 2.12 Borrower and giving rise Administrative Agent a certificate or other evidence to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes effect that it deems confidential) to any Borrower or any other Personis such a "United States person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)."
Appears in 1 contract
Samples: Credit Agreement (MDC Holdings Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, including FATCA) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c2.13(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers Borrower under Section 2.15) 2.16), or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b2.13(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a2.13(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or thereintherein (each, for the purposes of this Section, an “Appropriate Taxing Authority”) then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a2.13(a) Taxes) equal to the amount due hereunder and, and as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Blackrock Funds)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature At least five (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA5) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld Business Days prior to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from first date on which any amount is payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or hereunder for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending officeany Purchaser, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Purchaser that is not incorporated under the laws of the a “United States of America or a state thereof person” for United States federal income tax purposes agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers each of Seller and the Administrative its related Managing Agent two executed originals a copy of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, completed United States Internal Revenue Service Form W-8BEN X-0XXX, X-0XXX or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, W-8IMY with all necessary attachments or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIsuccessor forms, certifying in each case that such Bank Purchaser is entitled to receive all payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation Purchaser further undertakes to deliver to the Borrowers each of Seller and the Administrative its related Managing Agent two additional executed originals a copy of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Seller or the Administrative its related Managing Agent, in each case certifying that such Bank Purchaser is entitled to receive payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in any treaty, law or regulation) regulation has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent prevents such Bank Purchaser from duly completing and delivering any such form with respect to it and such Bank Purchaser advises the Borrowers Seller and the Administrative its related Managing Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition.
(b) Each Purchaser that is not a “United States person” for U.S. federal income tax purposes agrees to indemnify and hold Seller, the Managing Agents, the Purchasers and the Agent harmless in respect of any loss, cost or expense incurred by Seller, any Bank, if reasonably requested by the Borrowers Managing Agent or the Administrative AgentAgent as a result of, shall deliver and agrees that, notwithstanding any other provision hereof, payments hereunder to such Purchaser may be subject to deduction or withholding without indemnification by Seller for, any United States federal income taxes, penalties, interest and other documentation prescribed costs and losses incurred or payable by applicable law or reasonably requested by the Borrowers Seller, any Managing Agent or the Administrative Agent as will enable the Borrowers a result of, (i) such Purchaser’s failure to submit any form that is required pursuant to this Section 12.7 or (ii) Seller’s, any Managing Agent’s, any Purchaser’s or the Administrative Agent Agent’s reliance on any form that such Purchaser has provided pursuant to determine whether or not such Bank this Section 12.7 that is subject determined to backup withholding or information reporting requirements. Further, if be inaccurate in any material respect.
(c) If a payment made to a Bank Purchaser under any Loan Document this Agreement would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank Purchaser were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), such Bank Purchaser shall deliver to the Borrowers Seller and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Seller or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the IRC) and such additional documentation reasonably requested by the Borrowers Seller or the Administrative Agent as may be necessary for the Borrowers and Seller or the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank Purchaser has complied with such BankPurchaser’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Receivables Purchase Agreement (Insight Enterprises Inc)
Withholding Tax Exemption. Each Lender that is not a United States Person (aas defined in Section 7701(a)(30) All payments hereunder and under any of the other Loan Documents shall be made free Code) for federal income tax purposes (i) represents to the Lessee, the Lessor and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, that under applicable law and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law treaties in effect on the date hereof or on which (x) such Bank the date it becomes a party hereto (other than Lender pursuant to an assignment requested by Section 6.3, as the Borrowers case may be, no taxes are required to be withheld with respect to any payments to be made to such Participant under Section 2.15the Operative Documents, (ii) or (ya) such Bank changes its lending office, except in each case agrees to furnish to the extent that Lessee, the Lessor and the Administrative Agent, on or before the first Payment Date occurring after it has become a "Lender" either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such amounts were payable either Lender claims entitlement to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any complete exemption from U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of Americatax on all interest payments hereunder), or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank a Lender claiming the benefits of an income tax treaty to which the United States is a party and exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of interest and other payments under the Loan Documents, United States "portfolio interest," a U.S. Internal Revenue Service Form W-8BEN or W-8BEN-EW-8 (and, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Codeif a Lender delivers a Form W-8, a certificate to statement under the effect penalties of perjury that such Bank Lender is not a “bank” within the meaning of "Bank" under Section 881(c)(3)(A) of the Code, is not subject to regulatory or other legal requirements as a “10 percent shareholder” bank in any jurisdiction, and has not been treated as a bank for purposes of any Borrower within the meaning of Section 881(c)(3)(B) tax, securities law or other filing or submission made to any Authority, any application made to a rating agency or qualification for any exemption from tax, securities law or other legal requirements as of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicableDocumentation Date), (iii) agrees (for the benefit of the Lessee, the Lessor and the Administrative Agent), to the extent it may lawfully do so at such Bank is not time, to provide the beneficial ownerLessee, United States Internal Revenue Service the Lessor and the Administrative Agent, a new Form W-8IMY4224, accompanied Form 1001 or Form W-8 upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable U.S. laws and regulations and amendments duly executed and completed by additional such Lender, and to comply from time to time with all applicable U.S. laws and regulations with regard to such withholding tax exemption and (iv) agrees to obtain such extensions of time for filing and complete such forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may reasonably be reasonably requested by the Borrowers Lessee or the Administrative Agent, . Notwithstanding any provision in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior this Section 7.3 to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a)contrary, the Borrowers will not be required Lessee shall have no obligation to make pay any additional payment amount to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank Lender on account of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts taxes pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only 7.3 to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause amount results from (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (ex) the payment failure of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject any Lender to payment of additional amounts comply with its obligations pursuant to this Section 2.12 and giving rise 7.3 or (y) any representation or warranty made or deemed to such refund had not be made by any Lender pursuant to this Section 7.3 proving to have been deductedincorrect, withheld false or otherwise imposed and the additional amounts with misleading in any material respect when so made or deemed to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Personmade.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. Each Lender which is not a United States person (aas such term is defined in Section 7701(a)(30) All payments hereunder and under any of the other Loan Documents shall be made free Code) agrees to deliver to Borrower and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, Closing Date (i) in the case two complete executed copies of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN 4224 or W-8BEN-E, as applicable, Form 1001 (or successor forms thereto) certifying such Lender's entitlement to an exemption from United States withholding tax with respect to payment to be made under this Agreement or (ii) in if the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank Lender is not a “"bank” " within the meaning of Section 881(c)(3)(A) of the CodeCode and cannot deliver either Form 4224 or Form 1001, a “10 percent shareholder” certificate in a form approved by the Administrative Agent and two complete executed copies of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN W-8 (or W-8BEN-Esuccessor form thereto) certifying such Lender's entitlement to exemption from such withholding. In addition, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes Lender agrees to deliver to the Borrowers Borrower and the Administrative Agent two additional executed originals updates or replacements to the foregoing forms and certificates from time to time when due to the lapse of time, the change in circumstances or otherwise, any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes certificate previously provided under this Section 2.6.4. shall become obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled inaccurate. Each Lender agrees to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers immediately notify Borrower and the Administrative Agent in the event that it is not capable unable to certify that it is entitled to an exemption from withholding as aforesaid. Notwithstanding any provision of receiving payments without any deduction Section 2.6.3 or withholding of United States federal income taxthis Section 2.6.4. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and contrary, Borrower shall be entitled, to the Administrative Agent at the time or times prescribed extent required by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount any Requirement of Law, to deduct and withhold income or similar taxes imposed by the United States (or any other Governmental Authority) from such payment. Solely for purposes of the immediately preceding sentenceinterest, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to fees or other amounts payable hereunder for the account of any Bank under Section 2.12(aLender which is not a United States person (as defined above) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished for U.S. Federal income tax purposes to the Borrowers extent that such Lender has not provided to Borrower forms establishing an exemption therefrom as aforesaid and Borrower shall not be obligated to pay any amounts under 2.12(b) this Section 2.6.4. hereof in respect of income or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid withholding taxes imposed by the Administrative Agent in connection with United States if any Loan Document and (ii) any Taxes attributable Lender has not provided the forms required to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts provided pursuant to this Section 2.122.6.4. hereof or, it shall pay in the case of a payment, other than interest, to the applicable Borrower an amount equal to such refund (but only a Lender to the extent of payments made under this Section with respect to the Taxes giving rise to that any such refund), net of all out-of-pocket expenses (including Taxes) forms do not establish a complete exemption from withholding of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Persontaxes.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Term Loan and Acquisition Credit Agreement (Alarmguard Holdings Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the request of the Borrower or Agent.
(b) Any Bank party hereto) will that is a Foreign Bank and is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower (with a copy to the Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, each such Bank, if requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, including without limitation, as will enable the Borrower or the Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable, :
(i) in the case duly completed copies of such Bank Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form) claiming the eligibility for benefits of an income tax treaty to which the United States is a party and exemption from that reduces or eliminates withholding with respect to payments tax;
(ii) duly completed copies of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W-8ECI (or W-8BEN-E, as applicable, any successor form);
(iiiii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any the Borrower within the meaning of Section 881(c)(3)(Bsection 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Code, Internal Revenue Code and United States (y) duly completed copies of Internal Revenue Service Form W-8BEN (or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or any successor form); or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Internal Revenue Service Form W-8ECI, certifying in each case that Federal withholding tax duly completed together with such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such supplementary documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Applicable Law to permit the Borrowers or Borrower and/or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.11(c), “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Rivernorth Opportunities Fund, Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or At least five Business Days prior to the Effective Datefirst date for payment of interest or fees hereunder to a Foreign Lender, and (y) the Foreign Lender shall, if such Bank becomes a Bank party to this Agreement after the Effective Dateapplicable, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service IRS Form W-8BEN or W-8BEN-EW-8ECI (or any subsequent replacement or substitute form therefor), as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect certifying that such Bank is not a “bank” within the meaning Lender can receive payment of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents Obligations without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income such taxes, unless an event (including without limitation any change in treaty, law treaty or regulationlaw) has occurred prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which would prevent such Bank prevents the Foreign Lender from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent certifying that it is not capable of receiving can receive payments without any deduction or withholding of United States federal income taxsuch taxes. In additionDuring any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, other than by reason of an event (including any Bankchange in treaty or law) that occurs after it becomes a Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable may withhold taxes from payments to such Foreign Lender at the applicable statutory and treaty rates, and the Borrowers or the Administrative Agent to determine whether or shall not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to under Section 5.8 or this Section 2.12 5.9 as a result of such withholding. Each Lender or Agent that is organized under the laws of the United States, or any state or district thereof shall provide to the US Borrower (and giving rise in the case of a Lender, to the Administrative Agent) two duly executed copies of IRS Form W-9. In the event that any Lender or any Agent does not comply with the requirements of this Section 5.9, the relevant Borrower may withhold taxes from payments to such refund had not been deducted, withheld Lender or otherwise imposed and such Agent as required by Applicable Law. In the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes event of determining withholding Taxes imposed under FATCA, from and after the effective date resignation of this Agreement, each Borrower and the Administrative Agent shall treat (and pursuant to Section 12.8 hereunder, the Banks hereby authorize the successor Administrative Agent shall be subject to treat) the provisions of this Agreement as not qualifying Section 5.9 in the same manner as a “grandfathered obligation” within its predecessor Administrative Agent, and shall be required to provide the meaning appropriate IRS Form W-8BEN or W-8ECI to the US Borrower as required in this Section 5.9. In the event that the successor Administrative Agent does not comply with the requirements of Treasury Regulation this Section 1.1471-2(b)(2)(i)5.9, the Borrowers may withhold taxes from payments to such successor Administrative Agent as required by Applicable Law.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Birks & Mayors Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the request of the Borrower or Agent.
(b) Any Bank party hereto) will that is a Foreign Bank and is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower (with a copy to the Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, each such Bank, if requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, including without limitation, as will enable the Borrower or the Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable, :
(i) in the case duly completed copies of such Bank Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (or any successor form) claiming the eligibility for benefits of an income tax treaty to which the United States is a party and exemption from that reduces or eliminates withholding with respect to payments tax;
(ii) duly completed copies of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W-8ECI (or W-8BEN-E, as applicable, any successor form);
(iiiii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any the Borrower within the meaning of Section 881(c)(3)(Bsection 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Code, Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and United States (y) duly completed copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable, applicable (iiior any successor form);
(iv) to the extent such a Foreign Bank is not the beneficial owner, United States two duly executed originals of Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN-E, Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-9, a U.S. Tax Compliance Certificate, and/or other certification documents from each beneficial owner, as required applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank shall provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; or
(v) any other form prescribed by applicable law, Applicable Law as a basis for claiming exemption from or (iv) a reduction in United States Internal Revenue Service Form W-8ECI, certifying in each case that Federal withholding tax duly completed together with such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such supplementary documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Applicable Law to permit the Borrowers or Borrower and/or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.11(c), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything Effective Date and any fiscal or regulatory legislation, or any official governmental rules adopted pursuant to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent intergovernmental agreement entered into in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d)FATCA.
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Credit Suisse Asset Management Income Fund Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any Any assignee of the other Loan Documents shall be made free and clear all or a portion of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined Lender's interest in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority Loan in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA 12.15 (each such non-excluded Tax for the purposes of this Sectionassignee, a “Section 2.12(aan "Assignee") Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated created or organized under the laws of the United States of America or a state political subdivision thereof agrees that it ((x) if shall deliver to Borrower and Lender, no later than the date upon which such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank Assignee becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers , a true and the Administrative Agent two accurate certificate executed originals of whichever of the following is applicable, (i) in the case duplicate by a duly authorized officer of such Bank claiming the benefits of an income tax treaty Assignee, in a form satisfactory to which the United States is a party Borrower and exemption from withholding with respect to payments of interest and other payments under the Loan DocumentsLender, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank Assignee is not a “bank” within capable, under the meaning provisions of Section 881(c)(3)(Aan applicable treaty concluded by the United States of America (in which case the certificate shall be accompanied by three (3) accurate and complete duly executed originals of Form W-8BEN of the Code, a “10 percent shareholder” of any Borrower within the meaning of Internal Revenue Service) or under Section 881(c)(3)(B) 1442 of the Code, or a “controlled foreign corporation” described Internal Revenue Code (in Section 881(c)(3)(Cwhich case the certificate shall be accompanied by three (3) accurate and complete duly executed originals of Form W-8ECI of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-EService), as applicableof receiving payments of principal, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents interest and fees hereunder without deduction or withholding of any United States federal income taxestax. Further, if at any time Lender or any Assignee changes its applicable lending office or selects an additional applicable lending office, it shall, at the same time or promptly thereafter, but only to the extent the certificate and forms previously delivered by it hereunder are no longer applicable or effective, deliver to Borrower and Lender in replacement for, or in addition to, the certificate and forms previously delivered by it hereunder, a true and accurate certificate executed in duplicate by a duly authorized officer of Lender or such Assignee accompanied by three (3) accurate and complete duly executed originals of either Form W-8BEN of the Internal Revenue Service or Form W-8ECI of the Internal Revenue Service, whichever is applicable, indicating that Lender or such Assignee is entitled to receive payments of principal, interest and fees for the account of such changed or additional applicable lending office under this Agreement without deduction or withholding of United States federal tax. Each Bank which so delivers such documentation Assignee further undertakes agrees to deliver to the Borrowers Borrower and the Administrative Agent two additional Lender a true and accurate certificate executed in duplicate by a duly authorized officer of such Assignee accompanied by three (3) accurate and complete duly executed originals of any such either Form W-8BEN of the Internal Revenue Service or Form W-8ECI of the Internal Revenue Service, whichever is appropriate, substantially in a form (satisfactory to Borrower and Lender, before or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after promptly upon the occurrence of any event requiring a change in the most recent documentation so certificate or Internal Revenue Service form previously delivered by itit to Borrower and Lender pursuant to this Section 2.03(i). Further, each Assignee which delivers a certificate accompanied by Form W-8BEN of the Internal Revenue Service covenants and agrees to deliver to Borrower and Lender within fifteen (15) days prior to January 1, 2007, and every third (3rd) anniversary of such date thereafter, on which this Agreement is still in effect, another such certificate and three (3) accurate and complete original signed copies of Form W-8BEN (or as otherwise any successor form or forms required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by under the Borrowers Internal Revenue Code or the Administrative Agentapplicable regulations promulgated thereunder), and each Assignee that delivers a certificate accompanied by Form W-8ECI of the Internal Revenue Service covenants and agrees to deliver to Borrower and Lender within fifteen (15) days prior to the beginning of each subsequent taxable year of such Assignee during which this Agreement is still in each case certifying that effect, another such Bank is entitled to receive payments certificate and three (3) accurate and complete original signed copies of Internal Revenue Service Form W-8ECI (or any successor form or forms required under the Loan Documents without deduction Internal Revenue Code or withholding the applicable regulations promulgated hereunder). If (i) Lender or any Assignee is required under this Section 2.03(i) to provide a certificate or other evidence described above and fails to deliver to Borrower and Lender such certificate or other evidence or (ii) Lender or any Assignee delivers a certificate to the effect that, as a result of any United States federal income taxes, unless an event (including without limitation the adoption of or any change in any law, treaty, law rule, regulation, guideline or regulation) has occurred prior to determination of a Governmental Authority after the date on which any Lender or such delivery would otherwise be required which renders all Assignee became a party hereto, Lender or such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it Assignee is not capable of receiving payments of interest hereunder without any deduction or withholding of United States federal income tax. In additiontax as specified therein and that it is not capable of recovering the full amount of the same from a source other than Borrower, any Bankthen, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and extent required by law, as the Administrative Agent at sole consequence of Lender's or such Assignee's failure to deliver the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained certificate described in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by above or Lender's or such Bank Assignee's delivery of any certification or representation set forth the certificate described in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agentabove, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent Borrower shall be conclusive absent manifest error. Each Bank hereby authorizes entitled to deduct or withhold taxes from the Administrative Agent payments owed to set off and apply any and all amounts at any time owing to Lender or such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d)Assignee.
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the request of the Borrower or Agent.
(b) Any Bank party hereto) will that is a Foreign Bank and is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower (with a copy to the Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, each such Bank, if requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, including without limitation, as will enable the Borrower or the Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable, :
(i) in the case duly completed copies of such Bank Internal Revenue Service Form W-8BEN-E (or any successor form) claiming the eligibility for benefits of an income tax treaty to which the United States is a party and exemption from that reduces or eliminates withholding with respect to payments tax;
(ii) duly completed copies of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W-8ECI (or W-8BEN-E, as applicable, any successor form);
(iiiii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any the Borrower within the meaning of Section 881(c)(3)(Bsection 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Code, Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and United States (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, E (iiior any successor form);
(iv) to the extent such the Bank is not the beneficial owner, United States executed originals of Internal Revenue Service Form W-8IMYW-8IMY (or any successor form), accompanied by additional forms Internal Revenue Service Form W-8ECI (or certifications any successor form), Internal Revenue Service Form W-8BEN-E (or any successor form), a U.S. Tax Compliance Certificate, Internal Revenue Service Form W-9 (or any successor form), and/or other certification documents from each beneficial owner, as required applicable; provided that if the Bank is a partnership and one or more direct or indirect partners of the Bank are claiming the portfolio interest exemption, the Bank may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner solely for purposes of determining 10 percent shareholder status under treasury regulation section 1.871-14(g); or
(v) any other form prescribed by applicable law, Applicable Law as a basis for claiming exemption from or (iv) a reduction in United States Internal Revenue Service Form W-8ECI, certifying in each case that Federal withholding tax duly completed together with such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such supplementary documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Applicable Law to permit the Borrowers or Borrower and/or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.12(c), “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Goldman Sachs MLP & Energy Renaissance Fund)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature At least five (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA5) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld Business Days prior to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes first date on which interest or fees are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or hereunder for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending officeany Lender, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to each of the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, W-8ECI (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIsuccessor forms), certifying in each either case that such Bank Lender is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8BEN or W-8ECI (or successor forms) further undertakes to deliver to each of the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form forms (or a successor formforms) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, .
(b) If the U.S. Internal Revenue Service or any Bank, if reasonably requested by other governmental authority of the Borrowers United States or the Administrative Agent, shall deliver such any other documentation prescribed by applicable law country or reasonably requested by the Borrowers or any political subdivision thereof asserts a claim that the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or did not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and properly withhold tax from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment amounts paid to or for the account of any Bank under Section 2.12(a) by reason Lender (because the appropriate form was not delivered or properly completed, because such Lender failed to notify the Administrative Agent of (i) a breach by change in circumstances which rendered its exemption from withholding ineffective or for any other reason), such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank Lender shall severally indemnify the Administrative AgentAgent fully for all amounts paid, within 10 days after demand therefordirectly or indirectly, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document as tax, withholding thereof, or otherwise, including penalties and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Registerinterest, and including taxes imposed by any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all jurisdiction on amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause subsection, together with all costs and expenses related thereto (dincluding attorneys fees and time charges of attorneys for the Administrative Agent, which attorneys may be employees of the Administrative Agent).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund . The obligations of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made Lenders under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes2.17(b) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) survive the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 Obligations and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date termination of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Effective Date, and (y) if such Bank Closing Date or the date upon which it initially becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8ECI or W-8BEN or W-8BEN-Eother equivalent successor form, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income SECOND AMENDED AND RESTATED CREDIT AGREEMENT - Page 48 taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or W-8BEN or other equivalent successor form, as appropriate, further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of On the other Loan Documents shall be made free and clear of and without any deduction for or on account of any taxEffective Date, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (------------------------- each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or organized under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to each of the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service (i) Form W-8BEN W-8ECI (claiming exemption from withholding because the income is effectively connected with a U.S. trade or W-8BEN-E, as applicable, business) (or any successor form) or (ii) in the case of such Bank Form W-8BEN (claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Codefrom, or a “controlled foreign corporation” described in Section 881(c)(3)(Creduction of, withholding tax under an income tax treaty) of the Code, and United States Internal Revenue Service Form W-8BEN (or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIany successor form), certifying in each either case that such Bank Lender is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or Form W-8BEN further undertakes to deliver to each of the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (FMC Corp)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax Each Lender or branch profits Tax imposed Issuer shall, (1) on or measured by about the net income of a Bank or its lending office by the jurisdiction in which date such Bank is incorporated or has its principal office Lender or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank Issuer becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y2) if such Bank becomes a Bank party from time to this Agreement after time thereafter if, in each case of (1) and (2), reasonably requested in writing by the Effective DateParent or the Administrative Agent, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and as promptly as is reasonable provide the Administrative Agent two and the Parent with the executed originals of whichever of original forms prescribed by the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-Eother relevant Governmental Authority certifying as to the status of such Lender or such Issuer for purposes of determining exemption from, as applicableor reduced rate applicable to, withholding taxes with respect to payments to be made to such Lender or such Issuer under this Agreement and the other Loan Documents.
(ii) in Without limiting the case of such Bank claiming the benefits generality of the exemption for portfolio interest foregoing,
(A) If a payment made to a Lender or Issuer under this Agreement or any other Loan Documents would be subject to United States Federal withholding tax imposed by FATCA if such Lender or such Issuer fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 881(c1471(b) or 1472(b) of the Code, a certificate as applicable), such Lender or such Issuer shall deliver to the effect that Administrative Agent and the Parent on or about the date such Bank is not a “bank” within Lender or such Issuer becomes party to this Agreement, at the meaning of time or times prescribed #89365364v21 by law and at such time or times reasonably requested by the Administrative Agent or the Parent, such documentation prescribed by applicable law (including as prescribed by Section 881(c)(3)(A1471(b)(3)(C)(i) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be additional documentation reasonably requested by the Borrowers Administrative Agent or the Administrative AgentParent as may be necessary for such party to comply with its obligations under FATCA, in each case certifying to determine that such Bank is entitled Lender or such Issuer has complied with its obligations under FATCA or to receive payments under determine the Loan Documents without deduction or withholding amount to deduct and withhold from such payment; solely for purposes of this clause (g), “FATCA” shall include any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior amendments made to FATCA after the date on which any such delivery would otherwise be required which renders all such forms inapplicable of this Agreement;
(B) Any Lender or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any BankIssuer, if reasonably requested by the Borrowers Administrative Agent or the Administrative AgentParent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Administrative Agent or the Administrative Agent Parent as will enable the Borrowers Administrative Agent or the Administrative Agent Parent to determine whether or not such Bank Lender or such Issuer is subject to backup withholding or information reporting requirements. Further, if ;
(C) Each Lender that is a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with “United States person” within the applicable reporting requirements meaning of FATCA, such Bank Section 7701(a)(30) of the Code shall deliver to the Borrowers Administrative Agent and the Administrative Agent at Parent on or prior to the time date on which such Lender becomes a Lender under this Agreement or times prescribed by law and at such time or times when reasonably requested by the Borrowers Administrative Agent or the Parent, executed originals of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax; and
(D) Each lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Administrative Agent and the Parent on or prior to the date on which such documentation prescribed by applicable law and such additional documentation Lender becomes a Lender under this Agreement or when reasonably requested by the Borrowers Administrative Agent or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine Parent, executed originals of any applicable IRS Form W-8; provided that such Bank has complied with such Bank’s obligations under FATCA a Lender or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” Issuer shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required obligated to make provide any additional payment to or for the account of any Bank under Section 2.12(a) by reason of such form specified in clause (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) if such Bank’s failure Lender or inability such Issuer is not legally able to comply with Section 2.12(b).
(d) do so. Each Bank Lender and Issuer agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to update such Bank that are payable form or paid by certification or promptly notify the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect Parent in writing of its legal inability to such Tax had never been paiddo so. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).#89365364v21
Appears in 1 contract
Samples: Revolving Credit Agreement (Air Products & Chemicals Inc /De/)
Withholding Tax Exemption. (aEach Lender or holder of a participation interest in the Loans or Commitments permitted pursuant to Section 13.8(a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA"Participant") requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof (a "Non-U.S. Lender") agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Effective Date, and (y) if such Bank Closing Date or the date upon which it initially becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals of whichever of the following is applicable(or, (i) in the case of a Participant, on or before the date such Bank Participant purchases its related participation), two duly completed copies of U.S. Internal Revenue Service Form W-8ECI or W-8BEN or, in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party and exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of interest "portfolio interest", a statement substantially in the form of Exhibit F hereto, appropriately completed, and a Form W-8BEN, or other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-Eequivalent successor form, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or W-8BEN or other equivalent successor form, as appropriate, further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Dynamex Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not ------------------------- incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Effective Date, and (y) if such Bank Restatement Date or the date upon which it becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower (on behalf of Mail-Well and the Administrative Borrower) and the Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8BEN 1001, 4224 or W-8BEN-EW-8, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from Mail-Well and the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form 1001, 4224 or W-8 further undertakes to deliver to the Borrowers Borrower (on behalf of Mail-Well and the Administrative Borrower) and the Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from Mail-Well and the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Mail Well I Corp)
Withholding Tax Exemption. (a) All payments hereunder and under any of In the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of event that a Borrower or the Administrative Agent (is a U.S. Person, each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to such Borrower (with a copy to the laws of the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the request of any Borrower or the Agent.
(b) Any Bank party hereto) will that is a Foreign Bank and is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which a Borrower is resident for Tax purposes, or any Tax treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to such Borrower (with a copy to the Borrowers Agent), at the time or times prescribed by Applicable Law or reasonably requested by such Borrower or the Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, each Bank, if requested by a Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by such Borrower or the Agent, including without limitation, as will enable such Borrower or the Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that a Borrower is a U.S. Person, each Foreign Bank shall deliver to such Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of such Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable, :
(i) in the case duly completed copies of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, applicable (or any successor form) claiming eligibility for benefits of an income Tax treaty to which the United States is a party that reduces or eliminates withholding Tax;
(ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any successor form);
(iii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any such Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in receiving interest from a related person within the meaning of Section 881(c)(3)(C) of the Code, Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and United States (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, applicable (iiior any successor form);
(iv) to the extent such a Foreign Bank is not the beneficial owner, United States Internal Revenue Service duly completed copies of IRS Form W-8IMY, accompanied by additional forms IRS Form W-8ECI, IRS Form W-8BEN or certifications W-8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents, in form and substance reasonably acceptable such Borrower and to the Agent, from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case applicable; provided that such if the Foreign Bank is entitled to receive all payments under a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the Loan Documents without deduction or withholding portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; or
(v) any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such other form (prescribed by Applicable Law as a basis for claiming exemption from or a successor form) or other reduction in U.S. federal withholding Tax duly completed together with such supplementary documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Applicable Law to permit such Borrower and/or the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers any Borrower or the Administrative Agent as may be necessary for the Borrowers such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.11(c), “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Allianz Funds)
Withholding Tax Exemption. TC “5.11 Withholding Tax Exemption. “ \f c \l “2” \* MERGEFORMAT AUTONF D3_TC
5.11.1 Each Lender (awith respect to the relevant lending office) All and Agent shall, if reasonably requested by Administrative Borrower or Agent, deliver such documentation prescribed by Applicable Law or as reasonably requested by such party, as will enable such party to determine whether such Lender (with respect to the relevant lending office) is subject to withholding under Applicable Law, is entitled to an exemption from such withholding or is eligible for a reduced rate of withholding with respect to payments hereunder to be made to such Lender under the Loan Documents. In addition, each Lender (with respect to the relevant lending office) and Agent shall deliver updated or appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) promptly upon the obsolescence or invalidity of any documentation previously delivered by such party or promptly notify Administrative Borrower and Agent. In addition, each Lender (with respect to the relevant lending office) shall deliver to Administrative Borrower and Agent such other tax forms or other documents as shall be prescribed by Applicable Law, to the extent applicable, (x) to demonstrate that payments to such Lender (with respect to the relevant lending office) under any of this Agreement and the other Loan Documents are exempt from any withholding tax imposed pursuant to FATCA or (y) to allow Administrative Borrower and Agent to determine the amount to deduct or withhold. Without limiting the foregoing:
(a) On or before the date on which a Foreign Lender (or Agent that is not a “United States person” as defined under Section 7701(a)(30) of the Code) becomes a party to this Agreement, the Foreign Lender (or Agent that is not a “United States person” as defined under Section 7701(a)(30) of the Code) shall be made free deliver to Administrative Borrower and clear Agent two duly completed and executed copies of and without IRS Form X-0XXX, X-0XXX or W-8IMY (or any deduction for subsequent replacement or on account substitute form therefor), certifying that such Lender (or Agent that is not a “United States person” as defined under Section 7701(a)(30) of any tax, levy, deduction, withholding, the Code) can receive payment of Obligations or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the amounts payable hereunder without deduction or withholding of any Tax from any United States federal income taxes and such other form or forms, certificates or documentation as reasonably requested by Administrative Borrower or Agent to confirm or establish that such party can receive payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such of Obligations or other amounts payable hereunder without deduction or withholding and shall timely pay of U.S. taxes. Without limiting the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c)foregoing, if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank Foreign Lender that is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect relying on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under portfolio interest exception of Section 2.15871(h) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, shall also provide Agent and Administrative Borrower with IRS Form W‑8BEN (claiming exemption from U.S. withholding tax under the portfolio interest exemption) and a certificate certificate, in a form acceptable to the effect Agent and Administrative Borrower, representing to Agent and Administrative Borrower that such Bank Foreign Lender is not not: (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of any Borrower Loan Party within the meaning of Section 881(c)(3)(B871(h)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in Section receiving interest from a related person (within the meaning of Sections 881(c)(3)(C) of the Code, ) and United States Internal Revenue Service Form W-8BEN or W-8BEN(4) a conduit entity participating in a conduit financing arrangement as defined in Treasury Regulation Section 1.881-E, as applicable, 3 (iii) to a “U.S. Tax Compliance Certificate”). To the extent such Bank a Foreign Lender is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).Foreign
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be Any Foreign Bank that is entitled to make such deduction an exemption from or reduction of withholding and shall timely pay tax under the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank the Borrower is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or resident for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of Americatax purposes, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) times prescribed by Applicable Law or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by Applicable Law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any each Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with in the applicable reporting requirements of FATCA, such event that the Borrower is resident for tax purposes in the United States:
(a) each Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at (in such time or times number of copies as shall be reasonably requested by the Borrowers recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent Agent, but only if such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent Foreign Bank is legally entitled to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes do so), whichever of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.following is applicable:
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or party;
(ii) such Bank’s failure or inability to comply with Section 2.12(b).duly completed copies of Internal Revenue Service Form W-8ECI;
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authorityiii) in the event case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause not (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (eA) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligationbank” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(isection 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower to determine the withholding or deduction required to be made; and
(b) each Bank that is not a Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent, but only if such Bank is legally entitled to do so), duly completed copies of Internal Revenue Service Form W-9 or successor form.
Appears in 1 contract
Samples: Credit Agreement (Credit Suisse High Yield Bond Fund)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income (however denominated) of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such a Bank’s or Participant’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(bi) Each Bank that is incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent one executed copy of United States Internal Revenue Service Form W-9 certifying that such Bank is exempt from United States federal backup withholding tax.
(ii) Each Bank or Participant (as the case may be) that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. .
(iii) Each Bank which so delivers such documentation pursuant to Section 2.12(b)(i) and (ii) further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).this
Appears in 1 contract
Samples: Credit Agreement (BlackRock Variable Series Funds II, Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of Subject to the other Loan Documents provisions of this Section 2.21, all payments by the Borrower in respect of principal, interest, fees and other amounts due hereunder or under the Notes shall be made made, free and clear of and without any deduction for any and all present and future taxes, levies, imposts, deductions, charges, withholdings, and all liabilities with respect thereto, excluding income and franchise and ad valorem taxes of, in the case of each Lender and the Agents, of the jurisdiction under the laws of which such Lender or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law the Agents (as determined the case may be) is organized and, in the good faith discretion case of a Borrower or the Administrative Agent (each a “Withholding Agent”)Lender, as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), Lender's Lending Installation and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority of either thereof or thereintherein (all such non-excluded taxes, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes) equal "). At least five Business Days prior to the amount due first date on which interest or fees are payable hereunder andfor the account of any Lender, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
each Lender (bor Lending Installation) Each Bank that is not incorporated under the laws of the United States of America America, or a state thereof thereof, agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to each of the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN 1001 or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI4224, certifying in each either case that such Bank Lender (or Lending Installation) is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes. Each Bank Lender (or Lending Installation) which so delivers such documentation a Form 1001 or 4224 further undertakes to deliver to each of the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires (currently, three successive calendar years for Form 1001 and one calendar year for Form 4224) or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender (or Lending Installation) is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender (or Lending Installation) from duly completing and delivering any such form with respect to it and such Bank Lender (or Lending Installation) advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax, in which case such Lender shall deliver to the Borrower and Administrative Agent the required number of any form or certificate it is eligible to provide to reduce the amount of such withholding or deduction. In additionEach Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) represents and warrants to the Borrower and to the Administrative Agent that on the date hereof such Lender (i) is engaged in the active conduct of a trade or business in the United States and that it will make its Loans through a branch or office located in the United States (or otherwise is entitled to deliver accurate and complete signed copies of Internal Revenue Service Form 4224), or (ii) is exempt from U.S. withholding taxes with respect to payments to be made to such Lender hereunder in accordance with current U.S. Federal income tax law and the current provisions of a tax treaty to which the United States is a party. If such representation and warranty shall prove to be untrue as to any BankLender or withholding taxes otherwise become applicable otherwise than as a result of a change in a treaty, law or regulation, the Borrower shall not be obligated to reimburse such Lender under this Section 2.21 with respect to such withholding tax on interest, and, to the extent, if reasonably requested by any, that such Lender shall have received such reimbursement, it shall repay the Borrowers amount thereof to the Borrower or the Administrative Agent, as applicable. If any Lender receives a refund of or a credit for Taxes for which the Borrower has paid or reimbursed such Lender pursuant to this Section 2.21, such Lender shall deliver pay to the Borrower an amount equal to all or such other documentation prescribed portion of the net benefit actually received by applicable law such Lender as such Lender shall reasonably allocate to this Agreement. Any and all present or reasonably requested future Taxes and related liabilities (including penalties, interest, additions to tax and expenses) which are not paid by the Borrowers Borrower pursuant to and as required by this Section 2.21 shall be paid by, the Lender which received the principal, interest or the Administrative Agent as will enable the Borrowers fees in respect of which such Taxes or the Administrative Agent to determine whether related liabilities are payable. Any and all present or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed future Taxes which are required by law to be deducted or withheld from or in respect of any sum payable hereunder to any Lender and at such time or times reasonably requested which are not paid by the Borrowers Borrower pursuant to and as required by this Section 2.21 will be deducted or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid withheld by the Administrative Agent without any increase in connection with the sum payable. Each Lender agrees to indemnify each Agent and hold each Agent harmless for the full amount of any Loan Document and all present or future taxes and related liabilities (ii) any Taxes attributable including penalties, interest, additions to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Registertax and expenses, and any reasonable expenses arising therefrom Taxes imposed by any jurisdiction on amounts payable to such Agent under this Section 2.21) which are imposed on or with respect theretoto principal; interest, or fees payable to such Lender hereunder and which are not paid by the Borrower pursuant to this Section 2.21, whether or not such Taxes taxes or related liabilities were correctly or legally imposed or asserted by the relevant Governmental Authorityasserted. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent This indemnification shall be conclusive absent manifest errormade within thirty (30) days from the date such Agent makes written demand therefor. Each Bank hereby authorizes the Administrative Agent If any Taxes specified in this Section 2.21 are asserted to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank be due from any other source against any amount due Lender or Agent, such Lender or Agent will notify the Borrower (with a copy to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including TaxesAgent) of such Bank claim. Such Lender or Agent, as the case may be, may pay such asserted taxes, and the Borrower will indemnify such Lender or Agent for such payments, together with any interest, penalties and expenses in connection therewith, with interest thereon at the rate specified in Section 2.11 (calculated as if such payments constituted overdue amounts as of the date of making such payments), unless within 10 days after its receipt of such notification, the Borrower pays such asserted Taxes (and supplies such Lender or Administrative Agent with evidence of such payment) or (i) the Borrower notifies such Lender or Administrative Agent that the Borrower intends to contest in good faith and by appropriate proceedings the claim for such taxes asserted against such Lender or Agent, (ii) counsel for such Lender or Agent advises such Lender or Agent that it may withhold such payment without interest incurring thereby any additional legal liability (other than an obligation to pay interest thereon) and (iii) the Borrower indemnifies such Lender or Agent for any interest paid additional interest, payment, expenses or liabilities incurred by the relevant Governmental Authority with respect reason of its failure to make such refund)payment when originally asserted. Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything Without prejudice to the contrary survival or termination of any other agreement of the Borrower hereunder, the agreements of the Borrower contained in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) Section 2.21 shall survive the payment in full of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other PersonNotes.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank party will, prior to this Agreement, or on or prior to about the Effective Date, and (y) if such Bank Closing Date or the date upon which it becomes a Bank party to this Agreement after the Effective Dateand if it is legally able to do so, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers SOURCECORP, for and on behalf of SOURCECORP, and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8BEN W-8ECI or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from SOURCECORP under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or W-8BEN further undertakes to deliver to the Borrowers SOURCECORP, for and on behalf of SOURCECORP, and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers SOURCECORP or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from SOURCECORP under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers SOURCECORP, for and on behalf of SOURCECORP, and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Sourcecorp Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or At least five Business Days prior to the Effective Datefirst date for payment of interest or fees hereunder to a Foreign Lender, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will Foreign Lender shall deliver to the Borrowers and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service IRS Form W-8BEN or W-8BEN-EW-8ECI (or any subsequent replacement or substitute form therefor), as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect certifying that such Bank is not a “bank” within the meaning Lender can receive payment of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents Obligations without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income such taxes, unless an event (including without limitation any change in treaty, law treaty or regulationlaw) has occurred prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which would prevent such Bank prevents the Foreign Lender from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent certifying that it is not capable of receiving can receive payments without any deduction or withholding of United States federal income taxsuch taxes. In additionDuring any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) than by reason of an event (iincluding any change in treaty or law) that occurs after it becomes a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative AgentLender, within 10 days after demand therefor, for (i) any Taxes attributable Agent may withhold taxes from payments to such Bank that are payable or paid by Foreign Lender at the Administrative Agent in connection with any Loan Document applicable statutory and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Registertreaty rates, and any reasonable expenses arising therefrom or with respect thereto, whether or Borrowers shall not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount additional amounts under Section 5.8 or this Section 5.9 as a result of such withholding. Each Lender or Agent that is organized under the laws of the United States, or any state or district thereof shall provide to the Borrower (and in the case of a Lender, to the Agent) two duly executed copies of IRS Form W-9. In the event that any Lender or Agent does not comply with the requirements of this Section 5.9, Borrower may withhold taxes from payments to such Lender or Agent as required by applicable law. In the event of the resignation or removal of the Agent pursuant to this clause (e) Section 12.8 hereunder, the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax successor Agent shall be subject to payment the provisions of additional amounts pursuant to this Section 2.12 5.9 in the same manner as a its predecessor Agent, and giving rise shall be required to provide the appropriate IRS Form W-8BEN or W-8ECI to the Borrower as required in this Section 5.9. In the event that the successor Agent does not comply with the requirements of this Section 5.9, Borrower may withhold taxes from payments to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Personsuccessor Agent as required by applicable law.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or At least five Business Days prior to the Effective Datefirst date for payment of interest or fees hereunder to a Foreign Lender, and (y) the Foreign Lender shall, if such Bank becomes a Bank party to this Agreement after the Effective Dateapplicable, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers US Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service IRS Form W-8BEN or W-8BEN-EW-8ECI (or any subsequent replacement or substitute form therefor), as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect certifying that such Bank is not a “bank” within the meaning Lender can receive payment of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents Obligations without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers US Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers US Borrower or the Administrative Agent, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income such taxes, unless an event (including without limitation any change in treaty, law treaty or regulationlaw) has occurred prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which would prevent such Bank prevents the Foreign Lender from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent certifying that it is not capable of receiving can receive payments without any deduction or withholding of United States federal income taxsuch taxes. In additionDuring any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, other than by reason of an event (including any Bankchange in treaty or law) that occurs after it becomes a Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable may withhold US Taxes from payments to such Foreign Lender at the applicable statutory and treaty rates, and the Borrowers or the Administrative Agent to determine whether or shall not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to under Section 5.8 or this Section 2.12 5.9 as a result of such withholding. Each Lender or Agent that is organized under the laws of the United States, or any state or district thereof shall provide to the US Borrower (and giving rise in the case of a Lender, to the Administrative Agent) two duly executed copies of IRS Form W-9. In the event that any Lender or any Agent does not comply with the requirements of this Section 5.9, the US Borrower may withhold taxes from payments to such refund had not been deducted, withheld Lender or otherwise imposed and such Agent as required by Applicable Law. In the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes event of determining withholding Taxes imposed under FATCA, from and after the effective date resignation of this Agreement, each Borrower and the Administrative Agent shall treat (and pursuant to Section 12.8 hereunder, the Banks hereby authorize the successor Administrative Agent shall be subject to treat) the provisions of this Agreement as not qualifying Section 5.9 in the same manner as a “grandfathered obligation” within its predecessor Administrative Agent, and shall be required to provide the meaning appropriate IRS Form W-8BEN or W-8ECI to the US Borrower as required in this Section 5.9. In the event that the successor Administrative Agent does not comply with the requirements of Treasury Regulation this Section 1.1471-2(b)(2)(i)5.9, the US Borrower may withhold US Taxes from payments to such successor Administrative Agent as required by Applicable Law.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Birks & Mayors Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not ------------------------- incorporated or otherwise formed under the laws of the United States of America U.S. or a state thereof agrees that it ((x) if such Bank is an original Bank will, prior to or on or about the Effective Date or the date upon which it initially becomes a party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States U.S. Internal Revenue Service Form W-8ECI or W-8BEN or W-8BEN-Eother equivalent successor documents, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIappropriate, certifying in each any case that such Bank Lender is entitled to receive all payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or W-8BEN or other equivalent successor document, as appropriate, further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments from the Borrower under the any Loan Documents Document without deduction or withholding of any United States U.S. federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving such payments without any deduction or withholding of United States U.S. federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Ipcs Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) a properly completed and executed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, ____________________ 1 Language required per Bank’s policy expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the request of the Borrower or Agent.
(b) Any Bank party hereto) will that is a Foreign Bank and is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower (with a copy to the Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, each such Bank, if requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, including, without limitation, as will enable the Borrower or the Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable, :
(i) in the case duly completed copies of such Bank Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any successor form) claiming the eligibility for benefits of an income tax treaty to which the United States is a party and exemption from that reduces or eliminates withholding with respect to payments tax;
(ii) duly completed copies of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W-8ECI (or W-8BEN-E, as applicable, any successor form);
(iiiii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any the Borrower within the meaning of Section section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Code, Internal Revenue Code and United States (y) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E, as applicable, E (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or any successor form); or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Internal Revenue Service Form W-8ECI, certifying in each case that Federal withholding tax duly completed together with such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such supplementary documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Applicable Law to permit the Borrowers or Borrower and/or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).the
Appears in 1 contract
Samples: Credit Agreement (Neuberger Berman Real Estate Securities Income Fund Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed tax on or measured by the overall net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax tax, levy, deduction, withholding or similar charge, for the purposes of this Section, a “Section 2.12(a2.13(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or thereintherein (each, for the purposes of this Section, an “Appropriate Taxing Authority”), except as expressly provided in this Section. Except as otherwise provided in Section 2.13(c), if any Section 2.13(a) Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, then the borrowing Borrower upon the request of such Bank shall (i) increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a2.13(a) Taxes) equal to the amount due hereunder andhereunder, (ii) pay such Section 2.13(a) Taxes to the Appropriate Taxing Authority for the account of such Bank in a timely manner, and (iii) as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIW8ECI, certifying in each either case that such Bank is entitled to receive all payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation a Form W8ECI further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a2.13(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a2.13(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(bSection 2.13(b) or (ii) such Bank’s failure or inability to comply with furnish under Section 2.12(b).
(d2.13(b) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable an original or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance an extension or renewal of a Participant Register, and any reasonable expenses arising therefrom Form W8ECI (or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refundsuccessor form), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borroweras applicable, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that unless such Bank is required to repay exempt from furnishing such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower Form pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i2.13(b).
Appears in 1 contract
Samples: Credit Agreement (Blackrock Fundamental Growth Fund, Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed tax on or measured by the overall net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax tax, levy, deduction, withholding or similar charge, for the purposes of this Section, a “"Section 2.12(a2.13(a) Tax”") imposed by the United States of America, or any political subdivision or taxing authority thereof or thereintherein (each, for the purposes of this Section, an "Appropriate Taxing Authority"), except as expressly provided in this Section. Except as otherwise provided in Section 2.13(c), if any Section 2.13(a) Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, then the borrowing Borrower upon the request of such Bank shall (i) increase the amount of such payment so that such Bank will receive a net amount Bank
(after deduction of all Section 2.12(aa) Taxes) equal Taxes to the amount due hereunder andAppropriate Taxing Authority for the account of such Bank in a timely manner, and (iii) as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIW8ECI, certifying in each either case that such Bank is entitled to receive all payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation a Form W8ECI further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents this Agreement without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a2.13(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a2.13(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(bSection 2.13(b) or (ii) such Bank’s 's failure or inability to comply with furnish under Section 2.12(b).
(d2.13(b) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable an original or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance an extension or renewal of a Participant Register, and any reasonable expenses arising therefrom Form W8ECI (or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refundsuccessor form), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borroweras applicable, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that unless such Bank is required to repay exempt from furnishing such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower Form pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i2.13(b).
Appears in 1 contract
Withholding Tax Exemption. At least five (a5) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld Business Days prior to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes first date on which interest or fees are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or hereunder for the account of such any Bank, each Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (xif any) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America America, or a state thereof (each, a "Non-U.S. Bank"), agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers Borrower and the Administrative Agent two executed originals (2) duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each either case that such Bank is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxestaxes and an Internal Revenue Service Form W-8 or W-9, certifying that such Bank is entitled to a complete exemption from United States backup withholding tax. Each Non-U.S. Bank which so delivers such documentation further undertakes to deliver to the Borrowers Borrower and the Administrative Agent two (x) renewals or additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or and (y) after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, additional forms or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, . All forms or amendments or renewals provided for in each case certifying the preceding sentence shall certify that such Bank is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the If a Bank does not provide duly executed forms to Borrower and Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at within the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation periods set forth in any form furnished to the Borrowers under 2.12(b) preceding paragraph, Borrower or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank Administrative Agent shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable withhold taxes from payments to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable statutory rates and Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank not be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant as a result of such withholding. Upon the reasonable request of Borrower or Administrative Agent, each Bank that has not provided the forms or other documents, as provided above, on the basis of being a "United States person," shall submit to this Section 2.12 Borrower and giving rise Administrative Agent a certificate or other evidence to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes effect that it deems confidential) to any Borrower or any other Personis such a "United States person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i)."
Appears in 1 contract
Samples: Credit Agreement (MDC Holdings Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by the Bank, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent), whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding tax;
(ii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis clause (c) of Section 2.11, “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) a properly completed and executed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date on which such Bank becomes a “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the request of the Borrower or Agent.
(b) Any Bank party hereto) will that is a Foreign Bank and is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower (with a copy to the Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, such properly completed and executed documentation prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced 1 Language required per Bank’s policy rate of withholding. In addition, each such Bank, if requested by the Borrower or the Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Agent, including, without limitation, as will enable the Borrower or the Agent to determine whether or not the Agent or such Bank is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Administrative Agent two executed originals (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a “Bank” under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the request of the Borrower or the Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable, :
(i) in the case duly completed copies of such Bank Internal Revenue Service Form W-8BEN or Form W-8BEN-E (or any successor form) claiming the eligibility for benefits of an income tax treaty to which the United States is a party and exemption from that reduces or eliminates withholding with respect to payments tax;
(ii) duly completed copies of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W-8ECI (or W-8BEN-E, as applicable, any successor form);
(iiiii) in the case of such a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of Section section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any the Borrower within the meaning of Section section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in Section receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Code, Internal Revenue Code and United States (y) duly completed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E, as applicable, E (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or any successor form); or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Internal Revenue Service Form W-8ECI, certifying in each case that Federal withholding tax duly completed together with such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such supplementary documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Applicable Law to permit the Borrowers or Borrower and/or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup the withholding or information reporting requirements. Further, if deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Applicable Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.11(c), “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Neuberger Berman Real Estate Securities Income Fund Inc)
Withholding Tax Exemption. (a) All payments hereunder and under any of Subject to the other Loan Documents provisions of this Section 2.21, all payments by the Borrower in respect of principal, interest, fees and other amounts due hereunder or under the Notes shall be made made, free and clear of and without any deduction for any and all present and future taxes, levies, imposts, deductions, charges, withholdings, and all liabilities with respect thereto, excluding income and franchise and ad valorem taxes of, in the case of each Lender and the Agents, of the jurisdiction under the laws of which such Lender or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law the Agents (as determined the case may be) is organized and, in the good faith discretion case of a Borrower or the Administrative Agent (each a “Withholding Agent”)Lender, as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), Lender's Lending Installation and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority of either thereof or thereintherein (all such non-excluded taxes, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes) equal "). At least five Business Days prior to the amount due first date on which interest or fees are payable hereunder andfor the account of any Lender, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
each Lender (bor Lending Installation) Each Bank that is not incorporated under the laws of the United States of America America, or a state thereof thereof, agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to each of the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN 1001 or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI4224, certifying in each either case that such Bank Lender (or Lending Installation) is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes. Each Bank Lender (or Lending Installation) which so delivers such documentation a Form 1001 or 4224 further undertakes to deliver to each of the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires (currently, three successive calendar years for Form 1001 and one calendar year for Form 4224) or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender (or Lending Installation) is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender (or Lending Installation) from duly completing and delivering any such form with respect to it and such Bank Lender (or Lending Installation) advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax, in which case such Lender shall deliver to the Borrower and Administrative Agent the required number of any form or certificate it is eligible to provide to reduce the amount of such withholding or deduction. In additionEach Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) represents and warrants to the Borrower and to the Administrative Agent that on the date hereof such Lender (i) is engaged in the active conduct of a trade or business in the United States and that it will make its Loans through a branch or office located in the United States (or otherwise is entitled to deliver accurate and complete signed copies of Internal Revenue Service Form 4224), or (ii) is exempt from U.S. withholding taxes with respect to payments to be made to such Lender hereunder in accordance with current U.S. Federal income tax law and the current provisions of a tax treaty to which the United States is a party. If such representation and warranty shall prove to be untrue as to any BankLender or withholding taxes otherwise become applicable otherwise than as a result of a change in a treaty, law or regulation, the Borrower shall not be obligated to reimburse such Lender under this Section 2.21 with respect to such withholding tax on interest, and, to the extent, if reasonably requested by any, that such Lender shall have received such reimbursement, it shall repay the Borrowers amount thereof to the Borrower or the Administrative Agent, as applicable. If any Lender receives a refund of or a credit for Taxes for which the Borrower has paid or reimbursed such Lender pursuant to this Section 2.21, such Lender shall deliver pay to the Borrower the amount of such other documentation prescribed by applicable law refund or reasonably requested credit. Any and all present or future Taxes and related liabilities (including penalties, interest, additions to tax and expenses) which are not paid by the Borrowers Borrower pursuant to and as required by this Section 2.21 shall be paid by the Lender which received the principal, interest or the Administrative Agent as will enable the Borrowers fees in respect of which such Taxes or the Administrative Agent to determine whether related liabilities are payable. Any and all present or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed future Taxes which are required by law to be deducted or withheld from or in respect of any sum payable hereunder to any Lender and at such time or times reasonably requested which are not paid by the Borrowers Borrower pursuant to and as required by this Section 2.21 will be deducted or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid withheld by the Administrative Agent without any increase in connection with the sum payable. Each Lender agrees to indemnify each Agent and hold each Agent harmless for the full amount of any Loan Document and all present or future taxes and related liabilities (ii) any Taxes attributable including penalties, interest, additions to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Registertax and expenses, and any reasonable expenses arising therefrom Taxes imposed by any jurisdiction on amounts payable to such Agent under this Section 2.21) which are imposed on or with respect theretoto principal, interest, or fees payable to such Lender hereunder and which are not paid by the Borrower pursuant to this Section 2.21, whether or not such Taxes taxes or related liabilities were correctly or legally imposed or asserted by the relevant Governmental Authorityasserted. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent This indemnification shall be conclusive absent manifest errormade within thirty (30) days from the date such Agent makes written demand therefor. Each Bank hereby authorizes the Administrative Agent If any Taxes specified in this Section 2.21 are asserted to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank be due from any other source against any amount due Lender or Agent, such Lender or Agent will notify the Borrower (with a copy to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including TaxesAgent) of such Bank claim. Such Lender or Agent, as the case may be, may pay such asserted taxes, and the Borrower will indemnify such Lender or Agent for such payments, together with any interest, penalties and expenses in connection therewith, with interest thereon at the rate specified in Section 2.11 (calculated as if such payments constituted overdue amounts as of the date of making such payments), unless within 10 days after its receipt of such notification, the Borrower pays such asserted Taxes (and supplies such Lender or Administrative Agent with evidence of such payment) or (i) the Borrower notifies such Lender or Administrative Agent that the Borrower intends to contest in good faith and by appropriate proceedings the claim for such taxes asserted against such Lender or Agent, (ii) counsel for such Lender or Agent advises such Lender or Agent that it may withhold such payment without interest incurring thereby any additional legal liability (other than an obligation to pay interest thereon) and (iii) the Borrower indemnifies such Lender or Agent for any interest paid additional interest, payment, expenses or liabilities incurred by the relevant Governmental Authority with respect reason of its failure to make such refund)payment when originally asserted. Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything Without prejudice to the contrary survival or termination of any other agreement of the Borrower hereunder, the agreements of the Borrower contained in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) Section 2.21 shall survive the payment in full of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other PersonNotes.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by the Bank, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) times prescribed by Applicable Law or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by Applicable Law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any each Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if in the event that the Borrower is resident for tax purposes in the United States each Foreign Bank shall deliver to the Borrower and the Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and promptly upon the obsolescence, expiration or invalidity of any form or certificate previously delivered by such Foreign Bank or from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding tax;
(ii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” receiving interest from a related person within the meaning of section 881(c)(3)(C) of the Internal Revenue Code and (y) original signed and duly completed copies of Internal Revenue Service Form W-8BEN; or
(iv) any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower to determine the withholding or deduction required to be made.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentencethis clause (c) of Section 2.11 hereof, “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (Ares Dynamic Credit Allocation Fund, Inc.)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Operations Agent) an original signed, property completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party hereto) will deliver “Bank” under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by such Bank, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or the Agent.
(b) Any Bank that is applicablea Foreign Bank and is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Operations Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Operations Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any each such Bank, if reasonably requested by the Borrowers Borrower or the Administrative Operations Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Operations Agent as will enable the Borrowers Borrower or the Administrative Operations Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, in the event that the Borrower is resident for tax purposes in the United States, each Foreign Bank shall deliver to the Borrower and the Operations Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the request of the Borrower or the Operations Agent, but only if such Foreign Bank is legally entitled to do so), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party that reduces or eliminates withholding tax;
(ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any successor form);
(iii) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Bank is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of any Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Internal Revenue Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable (or any successor form); or
(iv) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made. If a Bank is not legally entitled to deliver any renewal or replacement of a previously delivered form, such Bank shall notify the Borrower and the Operations Agent in writing of its inability to deliver such form upon the expiration of the previously delivered form.
(c) If a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAFATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Bank shall deliver to the Borrowers Borrower and the Administrative Operations Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Operations Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Operations Agent as may be necessary for the Borrowers Borrower and the Administrative Operations Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and or withhold from such payment. Solely for purposes of the immediately preceding sentencethis Section 2.15(c), “FATCA” shall include any amendments made to FATCA after the date of this AgreementEffective Date.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under If any Lender is a "foreign person" within the meaning of the other Loan Documents Code, such Lender shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in deliver to the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”i), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((xA) if such Bank is Lender qualifies for an original Bank party to this Agreementexemption from, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documentsreduction of, United States withholding tax under a tax treaty, a properly completed and executed Internal Revenue Service Form W-8BEN 1001 (or W-8BEN-E, as applicableapplicable successor form) before the payment of any interest in the first calendar year and in each succeeding calendar year during which interest may be paid under this Agreement, (iiB) if such Lender qualifies for an exemption from United States withholding tax for interest paid under this Agreement because it is effectively connected with a United States trade or business of such Lender, two properly completed and executed copies of Internal Revenue Service Form 4224 (or applicable successor form) before the payment of any interest is due in the case first taxable year of such Bank claiming the benefits Lender, and in each succeeding taxable year of the exemption for portfolio such Lender, during which interest may be paid under Section 881(cthis Agreement, or (C) of the Code, a certificate to the effect that if such Bank Lender is not a “"bank” within the meaning of " as defined in Section 881(c)(3)(A) of the Code, a “10 percent shareholder” properly completed and executed Internal Revenue Service Form W-8 (or applicable successor form) before the payment of any Borrower interest is due in the first taxable year of such Lender, and in each succeeding taxable year of such Lender, during which interest may be paid under this Agreement, certifying that such Lender is a foreign corporation, partnership, estate or trust, together with a certificate of a duly authorized officer representing that such Lender is not a "bank" for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning of Section 881(c)(3)(B871(h)(3)(B) of the Code, or ) of the Borrower and is not a “controlled foreign corporation” described in corporation related to the Borrower (within the meaning of Section 881(c)(3)(C864(d)(4) of the Code), and United States Internal Revenue Service Form W-8BEN (ii) such other form or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether establish or not such Bank is subject to backup substantiate exemption from, or reduction of, United States withholding tax under the Code or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes other laws of the immediately preceding sentence, “FATCA” shall include amendments made United States. Each Lender agrees to FATCA after notify the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account Agent of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of change in circumstances which would modify or render invalid any certification claimed exemption or representation set forth in reduction. If any form furnished or document referred to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
subsection (e) If any Bank determinesrequires the disclosure of information, in its sole discretion exercised in good faithother than information necessary to compute the tax payable and information required on the date hereof by Internal Revenue Service Form 1001, 4224 or W-8 (or applicable successor forms) (or the related certificate described above), that it has received a refund of any Taxes as the Lender reasonably considers to which it has received additional amounts pursuant to this Section 2.12be confidential, it the Lender shall pay give notice thereof to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed obligated to require any Bank to make available its Tax returns (include in such form or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Persondocument such confidential information.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent Agents two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each either case that such Bank Lender is entitled to receive all payments from the US Borrower or the Canadian Borrower, as applicable under the any Loan Documents Document without deduction or withholding of any United States federal income taxes. Each Bank US Lender which so delivers such documentation a Form W-8BEN or W-8ECI further undertakes to deliver to the Borrowers US Borrower or the Canadian Borrower, as applicable and the Administrative Agent Agents two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers US Borrower or the Canadian Borrower, or the Administrative AgentAgents, in each case certifying that such Bank Lender is entitled to receive payments from the US Borrower or the Canadian Borrower, as applicable under the any Loan Documents Document without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers US Borrower or the Canadian Borrower, as applicable and the Administrative Agent Agents that it is not capable of receiving such payments without any deduction or withholding of United States federal income tax. In additionNotwithstanding any provisions of this agreement to the contrary, any Bank, if reasonably requested by the Borrowers US Borrower or the Administrative AgentCanadian Borrower, as applicable shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Furthermake payments net of, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCAand after deductions for, such Bank taxes and shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make increase any additional payment such amount payable to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability non-US Lender that fails to comply with Section 2.12(b)this Section.
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. At least five (a5) All payments Business Days prior to the first date on which any Rent is payable hereunder and or under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or Basic Document for the account of such Bank with respect to an applicable interest in a Loan any Noteholder or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is Investor not incorporated under the laws of the United States of America or a state thereof thereof, such Noteholder or Investor agrees that it ((x) if such Bank is an original Bank party will have delivered to this Agreement, on or prior to the Effective Date, Guarantor and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent Lessor two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each either case that such Bank Noteholder or Investor is entitled to receive all payments under this Agreement and the Loan other Basic Documents without with out deduction or withholding of any United States federal Federal income taxestaxes unless such Noteholder or Investor advises Guarantor and Lessor that, as a result of a change in an applicable treaty, law, or regulation, or in the judicial or administrative interpretations thereof, occurring after the Closing Date, that it may no longer lawfully deliver such Forms. Each Bank Noteholder and Investor which so delivers such documentation a Form W-8BEN or W-8ECI further undertakes to deliver to the Borrowers Guarantor and the Administrative Agent Lessor two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires W-8ECI W-8BEN or becomes obsolete or inaccurate (either from a lapse in time or a change in circumstance) or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Guarantor or the Administrative AgentLessor, in each case certifying that such Bank Noteholder or Investor, as the case may be, is entitled to receive payments under this Agreement and the Loan other Basic Documents without deduction or withholding of any United States federal Federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders any change in treaty, law or regulation or in the interpretation thereof by the applicable taxing Authority occurring after such Noteholder or Investor became a Noteholder or Investor hereunder has rendered all such forms inapplicable or which would prevent has prevented such Bank Noteholder or Investor from duly completing and delivering any such form with respect to it and such Bank Noteholder or Investor advises the Borrowers Guarantor and the Administrative Agent that Lessor that, as a result of such change in treaty, law, regulation or interpretation, it is not capable of receiving payments without any deduction or withholding of United States federal Federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “"Tax”"), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “"Withholding Agent”"), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income (however denominated) of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s 's assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s 's failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “"Section 2.12(a) Tax”") imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(bi) Each Bank that is incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent one executed copy of United States Internal Revenue Service Form W-9 certifying that such Bank is exempt from United States federal backup withholding tax.
(ii) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-W-8BEN- ACTIVE 255598135 E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “"bank” " within the meaning of Section 881(c)(3)(A) of the Code, a “"10 percent shareholder” " of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “"controlled foreign corporation” " described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. .
(iii) Each Bank which so delivers such documentation pursuant to Section 2.12(b)(i) and (ii) further undertakes to deliver to the Borrowers and the Administrative Agent two additional executed originals of any such form (or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank is entitled to receive payments under the Loan Documents without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s 's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “"FATCA” " shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank ACTIVE 255598135 under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s 's failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s 's failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).clause
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “"grandfathered obligation” " within the meaning of Treasury Regulation Section 1.1471Section
1. 1471-2(b)(2)(i).
Appears in 1 contract
Samples: Credit Agreement (BlackRock Variable Series Funds II, Inc.)
Withholding Tax Exemption. 5.11.1 Each Lender (awith respect to the relevant lending office) All and Agent shall, if reasonably requested by Administrative Borrower or Agent, deliver such documentation prescribed by Applicable Law or as reasonably requested by such party, as will enable such party to determine whether such Lender (with respect to the relevant lending office) is subject to withholding under Applicable Law, is entitled to an exemption from such withholding or is eligible for a reduced rate of withholding with respect to payments hereunder to be made to such Lender under the Loan Documents. In addition, each Lender (with respect to the relevant lending office) and Agent shall deliver updated or appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) promptly upon the obsolescence or invalidity of any documentation previously delivered by such party or promptly notify Administrative Borrower and Agent. In addition, each Lender (with respect to the relevant lending office) shall deliver to Administrative Borrower and Agent such other tax forms or other documents as shall be prescribed by Applicable Law, to the extent applicable, (x) to demonstrate that payments to such Lender (with respect to the relevant lending office) under any of this Agreement and the other Loan Documents are exempt from any withholding tax imposed pursuant to FATCA or (y) to allow Administrative Borrower and Agent to determine the amount to deduct or withhold. Without limiting the foregoing:
(a) On or before the date on which a Foreign Lender (or Agent that is not a “United States person” as defined under Section 7701(a)(30) of the Code) becomes a party to this Agreement, the Foreign Lender (or Agent that is not a “United States person” as defined under Section 7701(a)(30) of the Code) shall be made free deliver to Administrative Borrower and clear Agent two duly completed and executed copies of and without IRS Form X-0XXX, X-0XXX or W-8IMY (or any deduction for subsequent replacement or on account substitute form therefor), certifying that such Lender (or Agent that is not a “United States person” as defined under Section 7701(a)(30) of any tax, levy, deduction, withholding, the Code) can receive payment of Obligations or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the amounts payable hereunder without deduction or withholding of any Tax from any United States federal income taxes and such other form or forms, certificates or documentation as reasonably requested by Administrative Borrower or Agent to confirm or establish that such party can receive payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such of Obligations or other amounts payable hereunder without deduction or withholding and shall timely pay of U.S. taxes. Without limiting the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c)foregoing, if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank Foreign Lender that is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect relying on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under portfolio interest exception of Section 2.15871(h) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to the Borrowers and the Administrative Agent two executed originals of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, shall also provide Agent and Administrative Borrower with IRS Form W-8BEN (claiming exemption from U.S. withholding tax under the portfolio interest exemption) and a certificate certificate, in a form acceptable to the effect Agent and Administrative Borrower, representing to Agent and Administrative Borrower that such Bank Foreign Lender is not not: (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of any Borrower Loan Party within the meaning of Section 881(c)(3)(B871(h)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in Section receiving interest from a related person (within the meaning of Sections 881(c)(3)(C) of the Code, ) and United States Internal Revenue Service Form W-8BEN or W-8BEN(4) a conduit entity participating in a conduit financing arrangement as defined in Treasury Regulation Section 1.881-E, as applicable, 3 (iii) to a “U.S. Tax Compliance Certificate”). To the extent such Bank a Foreign Lender is not the beneficial owner, United States Internal Revenue Service the Foreign Lender shall provide two (2) executed originals of IRS Form W-8IMY, accompanied by additional forms or certifications IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as required by applicable lawapplicable; provided, that if the Foreign Lender is a partnership and one or (iv) United States Internal Revenue Service Form W-8ECImore direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, certifying in such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxesdirect and indirect partner. Each Bank which so delivers such documentation further undertakes to Foreign Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent two additional executed originals copies of any such form (and any such other forms and certifications from time to time if requested by Administrative Borrower or a successor form) or other documentation on or Agent and before the date that such documentation preceding form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by itform, or as otherwise required by applicable law and such amendments thereto or well as any amendments, extensions or renewals thereof as may be reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, in each case case, certifying that such Bank is entitled to the Foreign Lender can receive payments under the Loan Documents payment of Obligations without deduction or withholding of any United States federal income such taxes, unless an event (including without limitation any change in treaty, law treaty or regulationlaw) has occurred prior that renders such forms inapplicable or prevents the Foreign Lender from certifying that it can receive payments without deduction or withholding of such taxes. During any period that a Foreign Lender does not or is unable to establish that it can receive payments without deduction or withholding of such taxes, other than by reason of an event (including any change in treaty or law) that occurs after it becomes a Lender, Agent may withhold taxes from payments to such Foreign Lender at the applicable statutory and treaty rates, and Borrowers shall not be required to pay any additional amounts under this Section 5.11 or Section 5.10 as a result of such withholding.
(b) On or before the date on which any such delivery would otherwise be required which renders all such forms inapplicable a Lender or which would prevent such Bank from duly completing Agent becomes a party to this Agreement, each Lender or Agent that is a “United States person” as defined under Section 7701(a)(30) of the Code (a “U.S. Lender”) shall deliver to Administrative Borrower and delivering any Agent such form with respect or forms, certificates or documentation, including two (2) original executed copies of IRS Form W-9, and at all other times as reasonably requested by Administrative Borrower or Agent to it and confirm or establish that such Bank advises the Borrowers and the Administrative Lender or Agent that it is not capable of receiving payments without any deduction subject to deduction, withholding, or backup withholding of United States federal income taxTax with respect to any payments to such Lender. In addition, any Bank, if reasonably requested Such forms shall be delivered by the Borrowers each Lender to Administrative Borrower and Agent on or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after before the date of such Lender becomes a party to this Agreement.
(c) Notwithstanding anything Each Lender having sold a participation in any of its obligations shall collect from such Participant the documents described in this Section 5.11.1 and provide them to Administrative Borrower and Agent.
5.11.2 If the contrary contained in Section 2.12(a), Internal Revenue Service or any other Governmental Authority of the Borrowers will United States or any other jurisdiction asserts a claim that Agent did not be required to make any additional payment properly withhold tax from amounts paid to or for the account of any Bank under Section 2.12(a) by reason Lender due to a failure on the part of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure Lender to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register5.11.1, such Lender shall indemnify and hold Agent harmless for all amounts paid, directly or indirectly, by Agent, as tax or otherwise, including penalties and interest, and including any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally taxes imposed or asserted by any jurisdiction on the relevant Governmental Authority. A certificate as amounts payable to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause Section 5.11.2, together with all costs and expenses (dincluding attorney’s fees and expenses). The obligation of Lenders under this subsection shall survive the payment of all Obligations and the resignation or replacement of Agent.
(e) 5.11.3 If any Bank determines, in its sole discretion exercised in good faith, that it has received a Lender or Agent receives a refund of any Taxes as to for which it a payment has received additional amounts been made by a Borrower pursuant to this Section 2.125.10, it then such Lender or Agent shall pay to the applicable reimburse such Borrower an for such amount equal to such refund (but only to the extent of indemnity payments made made, or additional amounts paid, by Borrowers under this Section 5.10 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of by such Bank Lender or Agent and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender that is not incorporated or organized under the laws of the United States of America America, or a state thereof agrees that it ((x) if thereof, shall, on or before the date such Bank is an original Bank Lender becomes a party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to each of the Borrowers and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN W 8BEN, W 8ECI or W-8BEN-EW 8IMY, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect certifying that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank Lender is entitled to receive all payments under the Loan Documents this Agreement and such Lender’s Revolving Credit Note without deduction or withholding of any United States federal income taxes. Each Bank which Lender that so delivers such documentation a Form W 8BEN, W 8ECI or W 8IMY further undertakes to deliver to each of the Borrowers and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation expires or form expires, becomes obsolete or otherwise is required to be resubmitted as a condition to obtaining an exemption from a required withholding or deduction of United States federal income tax or after the occurrence of any event requiring a change in the most recent documentation forms so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments under the Loan Documents this Agreement and such Lender’s Revolving Credit Note without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred after the Closing Date and prior to the date on which any such delivery would otherwise be required which that renders all such forms inapplicable or which that would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender promptly advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In additionEach Lender that is incorporated or organized under the laws of the United States of America or a state thereof shall, any Bankwithin ten (10) days following the date such Lender becomes a party to this Agreement, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at two duly completed copies of United States Internal Revenue Service Form W-9, certifying that such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary Lender is a United States person for United States federal income tax purposes. Each Lender further undertakes to deliver to the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine two additional copies of such form (or a successor form) on or before the date that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentenceform expires, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document becomes obsolete or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d)becomes ineffective.
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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Withholding Tax Exemption. (a) All payments hereunder and under any of On the other Loan Documents shall be made free and clear of and without any deduction for or on account of any taxEffective Date, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank Lender ------------------------- that is not incorporated or organized under the laws of the United States of America or a state thereof agrees that it ((x) if such Bank is an original Bank party to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective Date, on or prior to the date such Bank becomes a Bank party hereto) will deliver to each of the Borrowers Borrower and the Administrative Agent two executed originals duly completed copies of whichever of the following is applicable, (i) in the case of such Bank claiming the benefits of an income tax treaty to which the United States is a party and exemption from withholding with respect to payments of interest and other payments under the Loan Documents, United States Internal Revenue Service (i) Form W-8BEN W-8ECI (claiming exemption from withholding because the income is effectively connected with a U.S. trade or W-8BEN-E, as applicable, business) (or any successor form) or (ii) in the case of such Bank Form W-8BEN (claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Codefrom, or a “controlled foreign corporation” described in Section 881(c)(3)(Creduction of, withholding tax under an income tax treaty) of the Code, and United States Internal Revenue Service Form W-8BEN (or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECIany successor form), certifying in each either case that such Bank Lender is entitled to receive all payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes. Each Bank Lender which so delivers such documentation a Form W-8ECI or Form W-8BEN further undertakes to deliver to each of the Borrowers Borrower and the Administrative Agent two additional executed originals copies of any such form (or a successor form) or other documentation on or before the date that such documentation form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation form so delivered by it, or as otherwise required by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank Lender is entitled to receive payments under this Agreement and the Loan Documents Notes without deduction or withholding of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank Lender from duly completing and delivering any such form with respect to it and such Bank Lender advises the Borrowers Borrower and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. In addition, any Bank, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Further, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with the applicable reporting requirements of FATCA, such Bank shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of this Agreement.
(c) Notwithstanding anything to the contrary contained in Section 2.12(a), the Borrowers will not be required to make any additional payment to or for the account of any Bank under Section 2.12(a) by reason of (i) a breach by such Bank of any certification or representation set forth in any form furnished to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, upon the request of such Bank, shall repay to such Bank the amount paid over pursuant to this clause (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (e) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
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Samples: 364 Day Credit Agreement (FMC Corp)
Withholding Tax Exemption. (a) All payments hereunder and under any of the other Loan Documents shall be made free and clear of and without any deduction for or on account of any tax, levy, deduction, withholding, or other similar charge of whatever nature (a “Tax”), unless otherwise required by law. If any applicable law (as determined in the good faith discretion of a Borrower or the Administrative Agent (each a “Withholding Agent”), as applicable, and including, for purposes of this Section 2.12, FATCA) requires the deduction or withholding of any Tax from any payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. Except as otherwise provided in Section 2.12(c), if any Taxes are imposed and required by law to be paid or withheld from any amount payable to any Bank, but excluding (i) any Tax or branch profits Tax imposed on or measured by the net income of a Bank or its lending office by the jurisdiction in which such Bank is incorporated or has its principal office or such lending office, (ii) any Tax imposed as a result of a present or former connection between such Bank or applicable lending office and the jurisdiction imposing such Tax, other than a connection arising solely under the Loan Documents, (iii) any U.S. federal withholding Tax imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (x) such Bank becomes a party hereto (other than pursuant to an assignment requested by the Borrowers under Section 2.15) or (y) such Bank changes its lending office, except in each case to the extent that such amounts were payable either to such Bank’s assignor immediately before such Bank became a party hereto or such Bank immediately before it changed its lending office, (iv) any Tax attributable to such Bank’s failure to comply with Section 2.12(b), and (v) any U.S. federal withholding Tax imposed under FATCA (each such non-excluded Tax for the purposes of this Section, a “Section 2.12(a) Tax”) imposed by the United States of America, or any political subdivision or taxing authority thereof or therein, then the borrowing Borrower upon the request of such Bank shall increase the amount of such payment so that such Bank will receive a net amount (after deduction of all Section 2.12(a) Taxes) equal to the amount due hereunder and, as promptly as possible thereafter, send such Bank evidence showing payment thereof.
(b) Each Bank that is not incorporated under a Foreign Bank shall deliver to the laws of Borrower (with a copy to the United States of America Agent) an original signed, properly completed IRS Form W-9 (or a state thereof agrees any successor form) certifying that it ((x) if such the Bank is an original Bank party not subject to this Agreement, on or prior to the Effective Date, and (y) if such Bank becomes a Bank party to this Agreement after the Effective DateU.S. backup withholding tax, on or prior to the date such on which the Bank becomes a Bank party hereto) will deliver under this Agreement, promptly upon the obsolescence, expiration, or invalidity of any form previously delivered by the Bank, and from time to time thereafter upon the Borrowers and the Administrative Agent two executed originals of whichever request of the following Borrower or Agent.
(b) Any Foreign Bank that is applicableentitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, (i) in the case of such Bank claiming the benefits of an income tax or any treaty to which the United States such jurisdiction is a party and exemption from withholding party, with respect to payments of interest and hereunder or under any other payments under the Loan Documents, United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (ii) in the case of such Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, a certificate to the effect that such Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and United States Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, (iii) to the extent such Bank is not the beneficial owner, United States Internal Revenue Service Form W-8IMY, accompanied by additional forms or certifications from each beneficial owner, as required by applicable law, or (iv) United States Internal Revenue Service Form W-8ECI, certifying in each case that such Bank is entitled to receive all payments under the Loan Documents without deduction or withholding of any United States federal income taxes. Each Bank which so delivers such documentation further undertakes to Document shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent two additional executed originals of any such form (Agent), at the time or a successor form) or other documentation on or before the date that such documentation expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent documentation so delivered by it, or as otherwise required times prescribed by applicable law and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers Borrower or the Administrative Agent, in each case certifying that such Bank is entitled properly completed and executed documentation prescribed by applicable law as will permit such payments to receive payments under the Loan Documents be made without deduction withholding or withholding at a reduced rate of any United States federal income taxes, unless an event (including without limitation any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Bank from duly completing and delivering any such form with respect to it and such Bank advises the Borrowers and the Administrative Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income taxwithholding. In addition, any Bank, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, including without limitation, as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such the Bank is subject to backup withholding or information reporting requirements. FurtherWithout limiting the generality of the foregoing, if a payment made to a Bank under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were to fail to comply with in the applicable reporting requirements of FATCAevent that the Borrower is resident for tax purposes in the United States, such each Foreign Bank shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at (in such time or times reasonably number of copies as shall be requested by the Borrowers recipient) on or the Administrative Agent such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent prior to comply with their obligations under FATCA and to determine that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of the immediately preceding sentence, “FATCA” shall include amendments made to FATCA after the date of on which such Foreign Bank becomes a Bank under this Agreement.
Agreement (c) Notwithstanding anything to and promptly upon the contrary contained in Section 2.12(a)obsolescence, the Borrowers will not be required to make any additional payment to expiration or for the account invalidity of any Bank under Section 2.12(a) by reason of (i) a breach form or certificate previously delivered by such Foreign Bank of any certification or representation set forth in any form furnished from time to the Borrowers under 2.12(b) or (ii) such Bank’s failure or inability to comply with Section 2.12(b).
(d) Each Bank shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Bank that are payable or paid by the Administrative Agent in connection with any Loan Document and (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 8.6(b) relating to the maintenance of a Participant Register, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Loan Document or otherwise payable by the Administrative Agent to such Bank from any other source against any amount due to the Administrative Agent under this clause (d).
(e) If any Bank determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has received additional amounts pursuant to this Section 2.12, it shall pay to the applicable Borrower an amount equal to such refund (but only to the extent of payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such Bank and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such Borrower, thereafter upon the request of such Bankthe Borrower or the Agent), shall repay whichever of the following is applicable:
(i) original signed and duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to such Bank which the amount paid over pursuant to this clause United States is a party that reduces or eliminates withholding tax;
(eii) original signed and duly completed copies of Internal Revenue Service Form W-8ECI;
(plus any penalties, interest or other charges imposed by the relevant Governmental Authorityiii) in the event case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a written certificate that such Foreign Bank is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause not (e), in no event will any Bank be required to pay any amount to any Borrower pursuant to this clause (eA) the payment of which would place the Bank in a less favorable net after-Tax position than such Bank would have been in if the Tax subject to payment of additional amounts pursuant to this Section 2.12 and giving rise to such refund had not been deducted, withheld or otherwise imposed and the additional amounts with respect to such Tax had never been paid. This clause (e) shall not be construed to require any Bank to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.
(f) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of this Agreement, each Borrower and the Administrative Agent shall treat (and the Banks hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligationbank” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Internal Revenue Code, or
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