Withholding Taxes and Other Taxes. (a) The Issuer and all Guarantors shall make all payments under or with respect to the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the government of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer or any Guarantor is resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "Relevant Taxing Jurisdiction"), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof. (b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations to pay Additional Amounts do not apply to: (i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee; (ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document); (iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA; (iv) any Taxes that would not have been imposed but for the existence of any present or former connection between the relevant holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction, including being organized or having its principal office therein, being or having been a citizen, resident or national thereof, or being or having been engaged in a trade or business therein or maintaining a permanent establishment or other physical presence in or otherwise having a connection with the Relevant Taxing Jurisdiction (other than a connection arising from the acquisition, ownership, holding or disposition of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, or the receipt of any payment in respect thereof or in respect of a Guarantee); (v) any Taxes imposed to the extent the payment could have been made without such withholding or deduction if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period); (vi) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder or beneficial owner is entitled; provided that such certification, documentation, information or other evidentiary requirement does not impose a material unreimbursed cost or expense on the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice the legal or commercial position of such holder or beneficial owner; (vii) any Taxes imposed with respect to any payment to a holder of a Note on behalf of a beneficial owner, which holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of such payment; (viii) any estate, inheritance, gift, personal property, sales, use, excise, transfer or other similar Tax imposed with respect to such payment; (ix) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision or equivalent provision of any provincial or territorial law); or (x) any combination of any of the above clauses. (c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted to the relevant Official Body on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid. (d) Whenever in this Indenture there is mentioned, in any context: (i) the payment of principal; (ii) purchase prices in connection with a purchase of Notes; (iii) interest; or (iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof. (e) The Issuer shall indemnify a Holder, within 30 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, an amount on account of Taxes for which the Issuer would have been obliged to pay Additional Amount hereunder and any reasonable expenses arising therefrom or with respect thereto. (f) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes (other than Taxes that are excluded from the Additional Amounts as provided in this Section 5.18), and the Issuer shall indemnify the Holders for any such taxes paid by such Holders. (g) The obligations described in this Section 5.18 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is a resident or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Senior Unsecured Notes Indenture
Withholding Taxes and Other Taxes. (a) The Issuer and all Guarantors shall make all payments under or with respect to the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "“Taxes"”) imposed or levied by or on behalf of the government of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer or any Guarantor is organized or is otherwise resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "“Relevant Taxing Jurisdiction"”), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or any Guarantor is so required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("“Additional Amounts"”) as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations obligation to pay Additional Amounts do shall not apply to:
to (i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee;
(ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document);
(iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA;
(iv1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction(or between a fiduciary, including being organized settlor, beneficiary, member or having its principal office therein, being or having been a citizen, resident or national thereofshareholder of, or being possessor of power over, the relevant Holder or having been engaged in a trade beneficial owner, if the relevant Holder or business therein beneficial owner is an estate, nominee, trust or maintaining a permanent establishment or other physical presence in or otherwise having a connection with corporation) and the Relevant Taxing Jurisdiction (other than a connection arising from the acquisition, ownership, holding or disposition mere receipt of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, payment or the receipt ownership or holding outside of Canada of such Note); (2) any payment in respect thereof estate, inheritance, gift, sales, excise, transfer, personal property tax or in respect of a Guarantee);
similar tax, assessment or governmental charge; (v3) any Taxes payable otherwise than by deduction or withholding from payments on the Notes; or (4) any Taxes imposed because the relevant Holder or beneficial owner of the Note fails to complete, execute and deliver to the Issuer any form or document to the extent applicable to such Holder or beneficial owner that may be required by law or by reason of administration of such law and which is reasonably requested in writing to be delivered to the Issuer in order to enable the Issuer to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document shall be delivered within 60 days of a written request therefor by the Issuer; nor shall the Issuer be required to pay Additional Amounts (a) if the payment could have been made without such deduction or withholding or deduction if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder or beneficial owner of Notes Holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
; (vib) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder Holder or beneficial owner is entitled; provided that such certification, documentation, information or other evidentiary requirement of the Notes with which the Issuer does not impose a material unreimbursed cost deal at arm’s length (within the meaning of the Income Tax Act (Canada)) at the time of making such payments; or expense on the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice the legal or commercial position of such holder or beneficial owner;
(viic) any Taxes imposed with respect to any payment of principal of (or premium, if any, on) or interest on such Note to a holder of a Note on behalf of a beneficial owner, which holder any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner of such payment would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share been the actual Holder of such payment;
(viii) any estate, inheritance, gift, personal property, sales, use, excise, transfer or other similar Tax imposed with respect to such payment;
(ix) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision or equivalent provision of any provincial or territorial law); or
(x) any combination of any of the above clausesNote.
(c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted pursuant to the foregoing paragraphs of this Section 4.19 to the relevant Official Body governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
, (i) the payment of principal;
; (ii) purchase prices in connection with a purchase of Notes;
; (iii) interest; or
or (iv) any other amount payable on or with respect to any of the Notes, in each case, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuer shall indemnify a Holder, within 30 10 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body a governmental authority of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, deduct an amount on account of Taxes for which the Issuer would have been obliged obligated to pay any Additional Amount hereunder and any penalties, interest and 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 the Issuer by such Holder shall be conclusive absent manifest error.
(f) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereofthereof or hereof, or the receipt of any payments with respect to the Notes (other than Taxes that are excluded from the Additional Amounts as provided in this Section 5.18)Notes, and the Issuer shall indemnify the Holders for any such taxes paid by such Holders.
(g) The obligations described in this Section 5.18 4.19 shall survive any termination, defeasance or discharge of this Indenture and will shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is a resident organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Indenture (Patheon Inc)
Withholding Taxes and Other Taxes. (a) The Issuer Any and all Guarantors payments by the Borrower hereunder shall make all payments under or with respect to the Notes be made free and clear of and without withholding or deduction for or on account of any and all present or future taxTaxes excluding taxes imposed on the Agent's, dutyany Lender Agent's or any Lender's (or any transferee's or assignee's, levyincluding a participation holder's (any such entity a "Transferee")) net income and franchise taxes imposed on the Agent or any Lender (or Transferee) (all such nonexcluded Taxes being hereinafter referred to as "Covered Taxes"). If the Borrower shall be required by law to deduct any Covered Taxes from or in respect of any sum payable hereunder to any Lender (or any Transferee), impostany Lender Agent or the Agent, assessment (i) the sum payable shall be increased by the amount necessary so that after making all required deductions such Lender (or Transferee), any Lender Agent or the Agent (as the case may be) shall receive an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxing authority or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the government of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction Governmental Authority in which the Issuer or any Guarantor is resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "Relevant Taxing Jurisdiction"), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereofaccordance with applicable law.
(b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the NotesIn addition, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations Borrower agrees to pay Additional Amounts do not apply to:
(i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee;
(ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document);
(iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA;
(iv) any Taxes that would not have been imposed but for the existence of any present or former connection between the relevant holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction, including being organized or having its principal office therein, being or having been a citizen, resident or national thereof, or being or having been engaged in a trade or business therein or maintaining a permanent establishment or other physical presence in or otherwise having a connection with the Relevant Taxing Jurisdiction (other than a connection arising from the acquisition, ownership, holding or disposition of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, or the receipt of any payment in respect thereof or in respect of a Guarantee);
(v) any Taxes imposed to the extent the payment could have been made without such withholding or deduction if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(vi) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder or beneficial owner is entitled; provided that such certification, documentation, information or other evidentiary requirement does not impose a material unreimbursed cost or expense on the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice the legal or commercial position of such holder or beneficial owner;
(vii) any Taxes imposed with respect to any payment to a holder of a Note on behalf of a beneficial owner, which holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of such payment;
(viii) any estate, inheritance, gift, personal property, sales, use, excise, transfer or other similar Tax imposed with respect to such payment;
(ix) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision or equivalent provision of any provincial or territorial law); or
(x) any combination of any of the above clauses.
(c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted to the relevant Official Body on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a purchase of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuer shall indemnify a Holder, within 30 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, an amount on account of Taxes for which the Issuer would have been obliged to pay Additional Amount hereunder and any reasonable expenses arising therefrom or with respect thereto.
(f) The Issuer shall pay any present or future stamp, court stamp or documentary taxes or any other excise or property taxes, charges or similar levies that which arise in from any Relevant Taxing Jurisdiction payment made hereunder or from the execution, delivery, enforcement delivery or registration of the Notesof, or otherwise with respect to, this Indenture or any other document or instrument in relation thereof, Agreement or the receipt transactions contemplated hereby (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender (or Transferee), any Lender Agent and the Agent for the full amount of Covered Taxes and Other Taxes paid by such Lender (or Transferee), any payments Lender Agent or the Agent, as the case may be, with respect to the Notes Borrower and any liability (including penalties, interest and reasonable out-of-pocket expenses) arising therefrom or with respect thereto (other than Taxes any such liability that are excluded results from the Additional Amounts as provided in this Section 5.18gross negligence or willful misconduct of the Lender (or Transferee), any Lender Agent or Agent), whether or not such Covered Taxes or Other Taxes were correctly or legally asserted by the relevant taxing authority or other Governmental Authority. Such indemnification shall be made within 30 days after the date any Lender (or Transferee), any Lender Agent or the Agent, as the case may be, makes written demand therefor. If the Borrower or any Lender (or Transferee), any Lender Agent or the Agent shall determine that Covered Taxes or Other Taxes may not have been correctly or legally assessed by the relevant taxing authority or other Governmental Authority, and that a Lender (or Transferee), any Lender Agent or the Agent may be entitled to receive a refund in respect of Covered Taxes or Other Taxes, it shall promptly notify the other party of the availability of such refund and such Lender (or Transferee), any Lender Agent or the Agent shall, within 30 days after receipt of a request by the Borrower, apply for such refund at the Borrower's expense.
(d) Before the first date on which any amount is payable hereunder for the account of any Lender Agent or Lender (or Transferee) not incorporated or organized under the laws of the USA such Lender Agent or Lender (or Transferee) shall deliver to the Borrower and the Issuer Agent each two (2) duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor applicable form) certifying that such Lender Agent or Lender (or Transferee) is entitled to receive payments hereunder without deduction or withholding of any United States federal income taxes. Each such Lender Agent or Lender (or Transferee) shall indemnify replace or update such forms when necessary to maintain any applicable exemption and as requested by the Holders Agent or the Borrower.
(e) The Borrower shall not be required to pay any additional amounts pursuant to paragraph (a) above to any Lender (or Transferee), Lender Agent or the Agent if the obligation to pay such additional amounts would not have arisen but for any such taxes paid (i) failure by such HoldersLender (or Transferee), Lender Agent or Agent to comply with the provisions of paragraph (d) above unless such Lender (or Transferee), Lender Agent or Agent is unable to comply with paragraph (d) because of a change in applicable law, regulation or official interpretation thereof, or (ii) an amendment, modification or revocation of any applicable tax treaty or a change in official position regarding the application or interpretation thereof, in each case after the initial Loan Date (and, in the case of a Transferee, after the date of assignment or transfer).
(f) If any Lender (or Transferee), Lender Agent or the Agent receives a refund or credit or offset against another tax liability in respect of any taxes for which such Lender (or Transferee), Lender Agent or Agent has received payment from the Borrower hereunder it shall promptly repay such refund or credit or offset (including any interest received by such Lender (or Transferee), Lender Agent or Agent from the taxing authority with respect to the refund with respect to such taxes) to the Borrower, net of all out-of-pocket expenses of such Lender (or Transferee), Lender Agent or the Agent; provided that the Borrower, upon the request of such Lender (or Transferee), Lender Agent or the Agent, agrees to return such refund or credit or offset against another tax liability (plus penalties, interest or other charges) to such Lender (or Transferee), Lender Agent or the Agent in the event such Lender (or Transferee), Lender Agent or the Agent is required to repay such refund or credit or offset against another tax liability.
(g) The obligations described in this Section 5.18 Any Lender (or Transferee), Lender Agent or Agent claiming any additional amounts payable under paragraph (a) above shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person (i) to the Issuer is a resident extent legally able to do so, upon written request from the Borrower, file any certificate or document if such filing would avoid the need for or reduce the amount of any political subdivision such additional amounts which may thereafter accrue, and the Borrower shall not be obligated to pay such additional amounts if, after the Borrower's request, any Lender (or taxing authority Transferee), Lender Agent or agency thereof Agent could have filed such certificate or thereindocument and failed to do so; or (ii) consistent with legal and regulatory restrictions, use reasonable efforts to change the jurisdiction of its applicable lending office if the making of such change would avoid the need for or reduce the amount of any additional amounts which may thereafter accrue and would not, in the sole determination of such Lender (or Transferee), Lender Agent or Agent, be otherwise materially disadvantageous to such Lender (or Transferee), Lender Agent or Agent.
Appears in 1 contract
Withholding Taxes and Other Taxes.
(a) The Issuer and all Guarantors shall make all its payments under or with respect to the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "“Taxes"”) imposed or levied by or on behalf of the government of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer or any Guarantor is resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "“Relevant Taxing Jurisdiction"”), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.thereof.
(b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("“Additional Amounts"”) as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations obligation to pay Additional Amounts do does not apply to:to
(i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee;
(ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document);
(iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA;
(iv1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction(or between a fiduciary, including being organized settlor, beneficiary, partner, member or having its principal office therein, being or having been a citizen, resident or national thereofshareholder of, or being possessor of power over the relevant Holder or having been engaged in a trade beneficial owner, if the relevant Holder or business therein beneficial owner is an estate, nominee, trust, partnership or maintaining a permanent establishment or other physical presence in or otherwise having a connection with corporation) and the Relevant Taxing Jurisdiction (including, without limitation, being a citizen or resident, domicile or national of, incorporated in or carrying on a business or having a permanent establishment in the Relevant Taxing Jurisdiction in which such Taxes are imposed) other than a connection arising from the acquisition, ownership, holding or disposition mere receipt of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, payment or the receipt ownership or holding outside of Canada of such Note; (2) any payment in respect thereof estate, inheritance, gift, sales, excise, transfer, value added, personal property tax or in respect of a Guarantee);
similar tax, assessment or governmental charge; (v3) any Taxes payable otherwise than by deduction or withholding from payments on the Notes; or (4) any Taxes imposed because the relevant Holder or beneficial owner of the Note fails to complete, execute and deliver to the Issuer any form or document to the extent applicable to such Holder or beneficial owner that may be required by law (including any applicable tax treaty) or by reason of administration of such law by a governmental authority of the appropriate Relevant Taxing Jurisdiction and which is reasonably requested in writing to be delivered to the Issuer in order to enable the Issuer to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document shall be delivered within 60 days of a written request therefor by the Issuer; nor shall the Issuer pay Additional Amounts (a) if the payment could have been made without such deduction or withholding or deduction if the beneficiary of the payment Note had been presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
; (vib) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder Holder or beneficial owner is entitled; provided that such certification, documentation, information or other evidentiary requirement of the Notes with which the Issuer does not impose a material unreimbursed cost or expense on deal at arm’s length (within the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice meaning of the legal or commercial position Income Tax Act (Canada)) at the time of making such holder or beneficial owner;
payments; (viic) any Taxes imposed with respect to any payment of principal of, or premium, if any, on or interest on such Note to a holder of a Note on behalf of a beneficial owner, which holder any Holder who is a fiduciary fiduciary, partnership or partnership limited liability company or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner of such payment would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share been the actual Holder of such payment;
Note, (viiid) to any estate, inheritance, gift, personal property, sales, use, excise, transfer Holder or other similar Tax imposed beneficial owner of the Notes that is a “specified non-resident shareholder” of the Issuer or non- resident person who was not dealing at arm’s length with respect to such payment;
(ixa “specified shareholder” of the Issuer for the purposes of subsection 18(5) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision or equivalent provision of any provincial or territorial law); or
or (xe) any combination of any of the above clausesitems (1) through (4) and (a) through (d) above.
(c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted to the relevant Official Body governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a purchase of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The Issuer shall indemnify a Holder, within 30 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body a governmental authority of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, an amount on account of Taxes for which the Issuer would have been obliged to pay Additional Amount hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto.
(fe) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes (other than Taxes that are excluded from the Additional Amounts as provided in this Section 5.184.19), and the Issuer shall indemnify the Holders for any such taxes paid by such Holders.
(gf) The obligations described in this Section 5.18 4.19 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is a resident or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Senior Secured Notes Indenture
Withholding Taxes and Other Taxes. (a) The Issuer and all Guarantors shall make all its payments under or with respect to the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "Taxes") imposed or levied by or on behalf of the government of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer or any Guarantor is resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "Relevant Taxing Jurisdiction"), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.thereof.
(b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations obligation to pay Additional Amounts do does not apply to:
to (i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee;
(ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document);
(iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA;
(iv1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction(or between a fiduciary, including being organized settlor, beneficiary, partner, member or having its principal office therein, being or having been a citizen, resident or national thereofshareholder of, or being possessor of power over the relevant Holder or having been engaged in a trade beneficial owner, if the relevant Holder or business therein beneficial owner is an estate, nominee, trust, partnership or maintaining a permanent establishment or other physical presence in or otherwise having a connection with corporation) and the Relevant Taxing Jurisdiction (including, without limitation, being a citizen or resident, domicile or national of, incorporated in or carrying on a business or having a permanent establishment in the Relevant Taxing Jurisdiction in which such Taxes are imposed) other than a connection arising from the acquisition, ownership, holding or disposition mere receipt of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, payment or the receipt ownership or holding outside of any payment in respect thereof or in respect Canada of a Guarantee);
such Note; (v2) any Taxes imposed on or measured by the Holder's net income (however denominated), franchise taxes and branch profits or similar taxes; (3) any estate, inheritance, gift, sales, excise, transfer, value added, personal property tax or similar tax, assessment or governmental charge; (4) any Taxes payable otherwise than by deduction or withholding from payments on the Notes; or (5) any Taxes imposed because the relevant Holder or beneficial owner of the Note fails to complete, execute and deliver to the Issuer any form or document to the extent applicable to such Holder or beneficial owner that may be required by law (including any applicable tax treaty) or by reason of administration of such law by a governmental authority of the appropriate Relevant Taxing Jurisdiction and which is reasonably requested in writing to be delivered to the Issuer in order to enable the Issuer to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document shall be delivered within 30 days of a written request therefor by the Issuer; nor shall the Issuer pay Additional Amounts (a) if the payment could have been made without such deduction or withholding or deduction if the beneficiary of the payment Note had been presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
; (vib) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder Holder or beneficial owner is entitled; provided that such certification, documentation, information of the Notes with which the Issuer or other evidentiary requirement a Guarantor does not impose a material unreimbursed cost or expense on deal at arm's length (within the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice meaning of the legal or commercial position Income Tax Act (Canada)) at the time of making such holder or beneficial owner;
payments; (viic) any Taxes imposed with respect to any payment of principal of, or premium, if any, on or interest on such Note to a holder of a Note on behalf of a beneficial owner, which holder any Holder who is a fiduciary fiduciary, partnership or partnership limited liability company or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner of such payment would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share been the actual Holder of such payment;
Note, (viiid) to any estate, inheritance, gift, personal property, sales, use, excise, transfer Holder or other similar Tax imposed with respect to such payment;
(ixbeneficial owner of the Notes that is a "specified non-resident shareholder" within the meaning of subsection 18(5) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) of the Issuer or any similar successor provision Guarantor, or equivalent provision a person not dealing at arm's length with such specified non-resident shareholder, but only to the extent that the payment made or under or with respect to the Notes to such specified non-resident shareholder or non-arm's length person would be treated as a dividend for the purposes of any provincial or territorial lawIncome Tax Act (Canada); or
or (xe) any combination of any of the above clausesitems (1) through (4) and (a) through (d) above.
(c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted to the relevant Official Body governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a purchase of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 4.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The Issuer shall indemnify a Holder, within 30 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body a governmental authority of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, an amount on account of Taxes for which the Issuer would have been obliged to pay Additional Amount hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto.
(fe) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes (other than Taxes that are excluded from the Additional Amounts as provided in this Section 5.184.18), and the Issuer shall indemnify the Holders for any such taxes paid by such Holders.
(gf) The obligations described in this Section 5.18 4.18 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is a resident or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Samples: Senior Secured Notes Indenture
Withholding Taxes and Other Taxes. (a) The Issuer and all Guarantors All payments made by the Seller hereunder shall make all payments under or with respect to the Notes free and clear of and be made without withholding or deduction for or on account of any present or future taxtaxes (other than overall net income taxes on the recipient). If any such withholding is so required, dutythe Seller shall make the withholding, levypay the amount withheld to the appropriate authority before penalties attach thereto or interest accrues thereon and pay such additional amount as may be necessary to ensure that the net amount actually received by the Agent, imposteach Purchaser, assessment or other governmental charge Purchaser Agent and the Liquidity Providers free and clear of such taxes (including penaltiessuch taxes on such additional amount) is equal to the amount that any Purchaser, any Purchaser Agent or the Agent (as the case may be) would have received had such withholding not been made. If the Agent, any Purchaser Agent, any Purchaser or any Liquidity Provider pays any such taxes, penalties or interest and other liabilities the Seller shall reimburse the Agent, such Purchaser Agent or such Purchaser for that payment on demand. If the Seller pays any such taxes, penalties or interest, it shall deliver official tax receipts evidencing that payment or certified copies thereof to the related thereto) Purchaser Agent on whose account such withholding was made (hereinafter "Taxes") imposed or levied by or on behalf with a copy to the Agent if not the recipient of the government of Canada original) on or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which before the Issuer or any Guarantor is resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "Relevant Taxing Jurisdiction"), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereofthirtieth day after payment.
(b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the NotesIn addition, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("Additional Amounts") as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations Seller agrees to pay Additional Amounts do not apply to:
(i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee;
(ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document);
(iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA;
(iv) any Taxes that would not have been imposed but for the existence of any present or former connection between the relevant holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction, including being organized or having its principal office therein, being or having been a citizen, resident or national thereof, or being or having been engaged in a trade or business therein or maintaining a permanent establishment or other physical presence in or otherwise having a connection with the Relevant Taxing Jurisdiction (other than a connection arising from the acquisition, ownership, holding or disposition of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, or the receipt of any payment in respect thereof or in respect of a Guarantee);
(v) any Taxes imposed to the extent the payment could have been made without such withholding or deduction if the beneficiary of the payment had presented the Note for payment within 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
(vi) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder or beneficial owner is entitled; provided that such certification, documentation, information or other evidentiary requirement does not impose a material unreimbursed cost or expense on the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice the legal or commercial position of such holder or beneficial owner;
(vii) any Taxes imposed with respect to any payment to a holder of a Note on behalf of a beneficial owner, which holder is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share of such payment;
(viii) any estate, inheritance, gift, personal property, sales, use, excise, transfer or other similar Tax imposed with respect to such payment;
(ix) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision or equivalent provision of any provincial or territorial law); or
(x) any combination of any of the above clauses.
(c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted to the relevant Official Body on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a purchase of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) The Issuer shall indemnify a Holder, within 30 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, an amount on account of Taxes for which the Issuer would have been obliged to pay Additional Amount hereunder and any reasonable expenses arising therefrom or with respect thereto.
(f) The Issuer shall pay any present or future stamp, court stamp or documentary taxes or any other excise or property taxes, charges or similar levies that which arise in from any Relevant Taxing Jurisdiction payment made hereunder or from the execution, delivery, enforcement delivery or registration of the Notesof, or otherwise with respect to, this Indenture or any other document or instrument in relation thereof, Agreement or the receipt of any payments with respect to the Notes (other than Taxes that are excluded from the Additional Amounts as provided in this Section 5.18), and the Issuer shall indemnify the Holders for any such taxes paid by such Holderstransactions contemplated hereby.
(gc) The obligations described in this Section 5.18 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in Before the first date on which any successor Person amount is payable hereunder for the account of any Purchaser or any Liquidity Provider not incorporated or organized under the laws of the USA ,such Purchaser or such Liquidity Provider shall deliver to the Issuer Seller and the Agent each two duly completed copies of United States Internal Revenue Service Form W-8BEN or W-8ECI (or successor applicable form) certifying that such Purchaser or such Liquidity Provider is a resident entitled to receive payments hereunder without deduction or withholding of any political subdivision United States federal income taxes. Each such Purchaser or taxing authority such Liquidity Provider shall replace or agency thereof update such forms when necessary to maintain any applicable exemption and as requested by the Agent or thereinthe Seller.
Appears in 1 contract
Samples: Receivables Sale Agreement (Alliance One International, Inc.)
Withholding Taxes and Other Taxes. (a) The Issuer and all Guarantors shall make all its payments under or with respect to the Notes free and clear of and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (hereinafter "“Taxes"”) imposed or levied by or on behalf of the government of Canada or any political subdivision or any authority or agency therein or thereof having power to tax, or any other jurisdiction in which the Issuer or any Guarantor is resident for tax purposes, or any jurisdiction from or through which payment is made on behalf of the Issuer or any Guarantor (each a "“Relevant Taxing Jurisdiction"”), unless the Issuer or any Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof.
(b) If the Issuer or any Guarantor is required to withhold or deduct any amount for or on account of Taxes imposed by a Relevant Taxing Jurisdiction from any payment made under or with respect to the Notes, the Issuer or such Guarantor, as applicable, shall pay as additional interest such additional amounts ("“Additional Amounts"”) as may be necessary so that the net amount received by a Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the foregoing obligations obligation to pay Additional Amounts do does not apply to:
to (i) any Canadian Taxes imposed because the relevant holder or beneficial owner of Notes does not deal at arm’s length (within the meaning of the Income Tax Act (Canada) (the "Tax Act")) with the Issuer or a Guarantor at the time of the payment, other than where the non-arm’s length relationship arises as a result of the existence, exercise or enforcement of any Note or Guarantee;
(ii) any Canadian Taxes to the extent such Taxes are assessed or imposed by reason of the relevant holder or beneficial owner of the Note being a "specified shareholder" as defined in subsection 18(5) of the Tax Act of the Issuer or a Guarantor or not dealing at arm’s length (for purposes of the Tax Act) with such a "specified shareholder", other than where the holder or beneficial owner of the Notes is a "specified shareholder," or does not deal at arm’s length with a "specified shareholder," as a result of the existence, exercise or enforcement of any Note, Guarantee or any other Notes Document);
(iii) any tax, assessment, withholding, or deduction required by Sections 1471 through 1474 of the Code ("FATCA") (and any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future Treasury regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA, or any agreement with the U.S. Internal Revenue Service under FATCA;
(iv1) any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder Holder or beneficial owner of Notes and the Relevant Taxing Jurisdiction(or between a fiduciary, including being organized settlor, beneficiary, partner, member or having its principal office therein, being or having been a citizen, resident or national thereofshareholder of, or being possessor of power over the relevant Holder or having been engaged in a trade beneficial owner, if the relevant Holder or business therein beneficial owner is an estate, nominee, trust, partnership or maintaining a permanent establishment or other physical presence in or otherwise having a connection with corporation) and the Relevant Taxing Jurisdiction (including, without limitation, being a citizen or resident, domicile or national of, incorporated in or carrying on a business or having a permanent establishment in the Relevant Taxing Jurisdiction in which such Taxes are imposed) other than a connection arising from the acquisition, ownership, holding or disposition mere receipt of such Note or a beneficial interest therein, the enforcement of rights thereunder or under a Guarantee, payment or the receipt ownership or holding outside of Canada of such Note; (2) any payment in respect thereof estate, inheritance, gift, sales, excise, transfer, value added, personal property tax or in respect of a Guarantee);
similar tax, assessment or governmental charge; (v3) any Taxes payable otherwise than by deduction or withholding from payments on the Notes; or (4) any Taxes imposed because the relevant Holder or beneficial owner of the Note fails to complete, execute and deliver to the Issuer any form or document to the extent applicable to such Holder or beneficial owner that may be required by law (including any applicable tax treaty) or by reason of administration of such law by a governmental authority of the appropriate Relevant Taxing Jurisdiction and which is reasonably requested in writing to be delivered to the Issuer in order to enable the Issuer to make payments on the Notes without deduction or withholding for Taxes, or with deduction or withholding of a lesser amount, which form or document shall be delivered within 60 days of a written request therefor by the Issuer; nor shall the Issuer pay Additional Amounts (a) if the payment could have been made without such deduction or withholding or deduction if the beneficiary of the payment Note had been presented the Note for payment within 30 days after the date on which such payment or such Note became due and payable or the date on which payment thereof is duly provided for, whichever is later (except to the extent that the relevant holder Holder or beneficial owner of Notes would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
; (vib) any Taxes to the extent imposed solely as a result of the holder’s or beneficial owner’s failure to comply, upon the reasonable request in advance by the Borrower, with any certification, documentation, information or other evidentiary requirement concerning such holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction if such compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to any exemption from, or a reduction in the rate of deduction or withholding of, such Taxes to which such holder Holder or beneficial owner is entitled; provided that such certification, documentation, information or other evidentiary requirement of the Notes with which the Issuer does not impose a material unreimbursed cost or expense on deal at arm’s length (within the holder or beneficial owner and further provided that no holder or beneficial holder shall be required to provide any confidential or proprietary information if it would reasonably be expected to materially prejudice meaning of the legal or commercial position Income Tax Act (Canada)) at the time of making such holder or beneficial owner;
payments; (viic) any Taxes imposed with respect to any payment of principal of, or premium, if any, on or interest on such Note to a holder of a Note on behalf of a beneficial owner, which holder any Holder who is a fiduciary fiduciary, partnership or partnership limited liability company or any person other than the sole beneficial owner of such payment payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner of such payment would not have been entitled to the Additional Amounts with respect to such payment had such beneficiary, settlor, member or beneficial owner received directly its beneficial or distributive share been the actual Holder of such payment;
Note, (viiid) to any estate, inheritance, gift, personal property, sales, use, excise, transfer Holder or other similar Tax imposed beneficial owner of the Notes that is a “specified non-resident shareholder” of the Issuer or non-resident person who was not dealing at arm’s length with respect to such payment;
(ixa “specified shareholder” of the Issuer for the purposes of subsection 18(5) any Taxes that are not payable by withholding or deduction (other than taxes payable pursuant to Regulation 803 of the Income Tax Act (Canada) or any similar successor provision or equivalent provision of any provincial or territorial law); or
or (xe) any combination of any of the above clausesitems (1) through (4) and (a) through (d) above.
(c) The Issuer or the applicable Guarantor shall pay the amount withheld or deducted to the relevant Official Body governmental authority on a timely basis in accordance with applicable law. As soon as practicable, the Issuer or such Guarantor, as applicable, shall provide the Trustee with official receipts or other documentation satisfactory to the Trustee evidencing the payment of the Taxes with respect to which Additional Amounts are paid.
(d) Whenever in this Indenture there is mentioned, in any context:
(i) the payment of principal;
(ii) purchase prices in connection with a purchase of Notes;
(iii) interest; or
(iv) any other amount payable on or with respect to any of the Notes, such reference shall be deemed to include payment of Additional Amounts as described in this Section 5.18 4.19 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
(e) . The Issuer shall indemnify a Holder, within 30 Business Days after written demand therefor, for the full amount of any Taxes paid by such Holder to an Official Body a governmental authority of a Relevant Taxing Jurisdiction, on or with respect to any payment by on or account of any obligation of the Issuer to withhold or deduct, for which it did not withhold or deduct, an amount on account of Taxes for which the Issuer would have been obliged to pay Additional Amount hereunder and any penalties, interest and reasonable expenses arising therefrom or with respect thereto.
(fe) The Issuer shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any Relevant Taxing Jurisdiction from the execution, delivery, enforcement or registration of the Notes, this Indenture or any other document or instrument in relation thereof, or the receipt of any payments with respect to the Notes (other than Taxes that are excluded from the Additional Amounts as provided in this Section 5.184.19), and the Issuer shall indemnify the Holders for any such taxes paid by such Holders.
(gf) The obligations described in this Section 5.18 4.19 shall survive any termination, defeasance or discharge of this Indenture and will apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer is a resident or any political subdivision or taxing authority or agency thereof or therein.
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Samples: Senior Secured Notes Indenture (Postmedia Network Canada Corp.)
