Net Payments. (a) Except as provided for in Section 3.03(b), all payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient pursuant to the laws of the jurisdiction under which such recipient is organized or the jurisdiction in which the principal office or Applicable Lending Office of such recipient, as applicable, is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower. (b) Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide to the Borrower and the Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent that such taxes arise solely due to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes. (c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund. (d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.
Appears in 1 contract
Net Payments. (a) All payments made by any Credit Party under any Credit Document (including, in the case of Holdings or the U.S. Borrower, in its capacity as a guarantor pursuant to Section 14 or 15, as the case may be) or under any Note will be made without setoff, counterclaim or other defense. Except as provided for in Section 3.03(b5.04(b), all such payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income income, capital, or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Lender pursuant to the laws of the jurisdiction under in which such recipient it is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Lender is located or any subdivision thereof or therein, therein and (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any U.S. withholding tax that is in effect and would apply to imposed on amounts payable to such Lender with respect to any such payments of the U.S. Borrower at the time it such Lender becomes a party to this Agreement (or designates a new Applicable Lending Office)Agreement, except to the extent that such Lender Lender's assignor (or assignorif any) was entitled entitled, at the time of designation of a new Applicable Lending Office or assignment assignment, to receive additional amounts from the U.S. Borrower with respect to any such withholding tax taxes pursuant to this Section 3.03paragraph 5.04(a)) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges thereto (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower agrees (or other Credit Party making the payment) shall, subject to the limitations with respect to the application of this Section 5.04 set forth in the first sentence of Section 2.12(a) and in the penultimate sentence of Section 13.04(b), pay the full amount of such Taxes to the appropriate Governmental Authority, and shall pay such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deductionNote. The respective Borrower (or Credit Party) will furnish to the Administrative Agent within 45 days after the date of the payment of any Taxes due pursuant to applicable law certified copies of tax receipts or, withholding to the extent such tax receipts are not customarily provided by the relevant Governmental Authority, other evidence of payment of such Tax reasonably acceptable to the Lender, evidencing such payment by such Borrower (or payment been required or made with respect the respective other Credit Party). The Credit Agreement Parties jointly and severally agree (and each Subsidiary Guarantor pursuant to such Taxes. Subject its respective Subsidiary Guaranty, and the incorporation by reference therein of the provisions of this Section 5.04, shall agree) to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes levied or imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.
(b) Each Lender that is a Lender to the U.S. Borrower and that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the U.S. Borrower and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender that is a Lender to the U.S. Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 Sections 2.13 or 13.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Sectiontransfer), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form W-8ECI or W-8IMY Form W-8BEN (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymenta complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s 's entitlement as of such date to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this AgreementAgreement and under any Note, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or reduction Form W-8BEN (such as statements certifying qualification for exemption with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a "Section 5.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest)interest exemption) (or successor form) certifying to such Lender's entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender that is a Lender to the U.S. Borrower agrees that from time to time after the Closing Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the U.S. Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation W-8ECI, Form W-8BEN (such as statements certifying qualification for exemption with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interestinterest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if with respect to payments under this Agreement and any Note, or it shall immediately notify the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the U.S. Borrower and the Administrative AgentAgent of its inability to deliver any such Form or Certificate, on in which case such Lender shall not be required to deliver any such Form or prior Certificate pursuant to the Closing Datethis Section 5.04(b); provided, or however, in the case of a event that the Lender that is an assignee cannot deliver any Form or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior Certificate which certifies to such assignment or transfer and Lender's complete exemption from United States withholding tax as of such Lender is in compliance with date, the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The U.S. Borrower shall not be obligated pursuant to Section 3.03(a5.04(a) hereof to pay additional amounts on account gross-up payments to be made to such Lender in respect of or indemnify with respect to United States withholding taxes or backup withholding taxes except to the extent that such taxes arise solely due the Lender's inability to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to provide the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted Form or withheld by it Certificate is directly as a result of any changes changes, after the date in which such the Lender becomes became a party to this Agreement Agreement, in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxessuch United States withholding taxes. Notwithstanding anything to the contrary contained in Section 5.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the U.S. Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable by the U.S. Borrower hereunder for the account of any Lender that is a Lender to the U.S. Borrower and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has not provided to the U.S. Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the U.S. Borrower shall not be obligated pursuant to Section 5.04(a) hereof to gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the United States (including, without limitation, United States withholding taxes) if (I) such Lender has not provided to the U.S. Borrower the Internal Revenue Service Forms required to be provided to the U.S. Borrower pursuant to this Section 5.04(b) or (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in Section 5.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence (x) as a result of any changes after the Effective Date (or, if later, after the date such Lender became party to this Agreement) in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar taxes or (y) as a result of the purchase of a participation as required by Section 2.14 following the occurrence of a Sharing Event.
(c) If any Borrower pays any additional amount under this Section 5.04 to a Lender becomes aware and such Lender determines in its sole good faith discretion that it has finally and irrevocably actually received or been granted realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a refund "Tax Benefit"), such Lender shall pay to such Borrower an amount that the Lender shall, in respect of any Taxes as its sole good faith discretion, determine is equal to the net benefit, after tax, which indemnification has been paid was obtained by the Borrower pursuant to this Section 3.03, it shall promptly remit Lender in such refund (including any interest received in respect thereof) to the relevant Borrower, net year as a consequence of all out-of-pocket costs and expenses to the Borrowersuch Tax Benefit; provided, however, that (i) any Lender may determine, in its sole good faith discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to such Borrower pursuant to this Section 5.04(c) shall be treated as a Tax for which such Borrower is obligated to indemnify such Lender pursuant to this Section 5.04 without any exclusions or defenses; (iii) nothing in this Section 5.04(c) shall require the Lender to disclose any confidential information to such Borrower (including, without limitation, its tax returns); and (iv) no Lender shall be required to pay any amounts pursuant to this Section 5.04(c) at any time which a Default or Event of Default exists.
(d) Each Lender agrees to promptly return any use reasonable efforts (consistent with legal and regulatory restrictions and subject to overall policy considerations of such refund (plus interestLender) to such Lender file any certificate or document or to furnish to the Non-U.S. Borrower any information, in each case, as reasonably requested by the Non-U.S. Borrower that may be necessary to establish any available exemption from, or reduction in the event such Lender is required to repay such refund to the relevant taxing authority andamount of, provided furtherany Taxes; provided, however, that nothing in this Section 3.03(c5.04(c) shall require any a Lender to make available disclose any confidential information (including, without limitation, its tax returns or its calculations).
(e) Each Tranche A TL Lender and each Multicurrency Facility RL Lender making Tranche A Term Loans or any providing Multicurrency Facility Revolving Loan Commitments, as the case may be, on the Initial Borrowing Date shall have delivered to the Canadian Borrower and the Administrative Agent such certificates, forms, documents or other information relating evidence as may be applicable and determined by the Canadian Borrower, acting reasonably, to its taxes be reasonably satisfactory to establish that such Lender is a Canadian Resident on the Initial Borrowing Date (it being acknowledged that a representation by such Person that it deems confidentialis a Canadian Resident shall be deemed to be reasonably satisfactory evidence thereof if such representation is accompanied by an explanation of the basis for such status). Any such .
(f) Notwithstanding the provisions of this Section 5.04, unless a Sharing Event shall have occurred or an Event of Default shall have occurred and be continuing, no amounts shall be payable pursuant to this Section 5.04 in respect of:
(i) any payment made by the Canadian Borrower in respect of a Tranche A Term Loan, a Canadian Dollar Denominated Incremental Term Loan, a Multicurrency Facility Revolving Loan or Multicurrency Facility Letter of Credit to a Lender that is not a Canadian Resident at the time of the payment; and
(ii) any payment made by the Canadian Borrower in respect of a Tranche B Term Loan to a Lender which does not deal at arm's length with the Canadian Borrower within the meaning of the Income Tax Act (Canada) at the time of the payment.
(g) Unless a Sharing Event shall have occurred, each Tranche A TL Lender and each Multicurrency Facility RL Lender that ceases to be a Canadian Resident shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender promptly (and its direct or indirect interest holders, if anyin any event within 30 days thereof) has entered into notify the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such paymentCanadian Borrower in writing that it is not a Canadian Resident.
Appears in 1 contract
Net Payments. (a) All payments made by any Credit Agreement Party hereunder (including, in the case of Holdings, in its capacity as Guarantor pursuant to Section 14) or under any Note will be made without setoff, counterclaim or other defense. Except as provided for in Section 3.03(b4.04(b), all such payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed with respect to such payments by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) excluding, in the case of each Lender, except as provided in the second succeeding sentence, any tax tax, including any income, branch profits, franchise or similar tax, which in each case is imposed on or measured by the net income or income, net profits or capital of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient such Lender pursuant to the laws of the jurisdiction under in which such recipient Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Lender is located or any political subdivision or taxing authority thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded nonexcluded taxes, levies levies, imposts, duties, fees, assessments or other charges (all such non-excluded nonexcluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the Borrower relevant Credit Agreement Party agrees to pay the full amount of such Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, by such Credit Agreement Party under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deductionNote. If any amounts are payable in respect of Taxes pursuant to the preceding sentence (any such amounts, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(bthe "Gross-Up Amount"), the Borrower relevant Credit Agreement Party agrees to reimburse each Lender, upon the written request of such Lender, for the net amount, if any, of any taxes such Lender shall determine are incurred by such Lender (taking into account in calculating such net amount any allowable credit, deduction or other benefit available as a result of, or with respect to, the payment by the relevant Credit Agreement Party to such Lender of (i) the Gross-Up Amount or (ii) any amount paid pursuant to this sentence) that would not have been incurred in the absence of the payment by such Credit Agreement Party of (i) the Gross-Up Amount or (ii) any amount paid pursuant to this sentence. The relevant Credit Agreement Party will furnish to the Administrative Agent promptly after the date the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by such Credit Agreement Party. Each Credit Agreement Party agrees to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes so levied or imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment Lender in respect of any Taxes, payments by or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies behalf of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the BorrowerCredit Agreement Party.
(b) Each Lender party to this Agreement on the Effective Date hereby represents that, as of the Effective Date, all payments of principal, interest, and fees to be made to it by the Borrower pursuant to this Agreement will be totally exempt from withholding of United States federal tax. Each Lender that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the Borrower and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment 1.13 or transfer and such Lender is in compliance with the provisions of this Section)13.04, on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form W-8ECI or W-8IMY Form W-8BEN (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymenta complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s 's entitlement to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this AgreementAgreement and under any Note, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or reduction Form W-8BEN (such as statements certifying qualification for exemption with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest)interest exemption) (or successor form) certifying to such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender agrees that (a) from time to time after the Closing Effective Date, when a lapse in time or change in circumstances or applicable law renders the previous certification obsolete or inaccurate in any material respect, and (b) upon the Borrower's reasonable request after the occurrence of any change in applicable law or any other event requiring the delivery of a Form W-8ECI, Form W-8BEN or any successor form in addition to or in replacement of the forms previously delivered, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation W-8ECI, Form W-8BEN (such as statements certifying qualification for exemption with respect to the benefits of any income tax treaty), Form W-8BEN (with respect to the portfolio interestinterest exemption) and a Section 4.04(b)(ii) Certificate, or any successor form, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if with respect to payments under this Agreement and any Note, or it shall immediately notify the Borrower and the Administrative Agent of its inability to deliver any such form or certificate in which case such Lender continues shall not be required to deliver any such form or certificate pursuant to this Section 4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a), but subject to the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so entitled. Each by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender that which is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal federal income tax purposes shall deliver to the extent that such Lender has not provided to the Borrower and the Administrative Agent, on or prior to the Closing DateU.S. Internal Revenue Service forms that establish a complete exemption from, or reduction in the case of a Lender that is an assignee amount of, such deduction or transferee of an interest under this Agreement pursuant to Section 11.06 withholding (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall no longer be required by this Section 3.03(b) eligible to deliver a such form or certificate that it is not legally entitled to deliver. The statement) and (y) the Borrower shall not be obligated pursuant to Section 3.03(a4.04(a) hereof to pay additional amounts on account gross-up payments to be made to such Lender, or to indemnify and hold harmless or reimburse such Lender, in respect of income or indemnify with respect to similar taxes imposed by the United States withholding taxes if (I) such Lender has not provided to the Borrower the Internal Revenue Service forms required to be provided to the Borrower pursuant to this Section 4.04(b) or backup withholding taxes (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such taxes arise solely due forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under the contrary contained in the preceding sentence or elsewhere in this Section 3.03(b4.04 and except as set forth in Section 13.04(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner and to the extent set forth in Section 3.03(a4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the date in which such Lender becomes a party to this Agreement Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of such Taxes; provided, however, the Borrower shall not be required to pay any additional amounts pursuant to this sentence to the extent such deduction or withholding is imposed as a result of the failure of the Lender to furnish the Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from or reduction in the amount of such deduction or withholding (unless such Lender shall not be eligible to deliver such form or statement). The Borrower shall not be required to pay any additional amounts or indemnification under Section 4.04(a) to any Lender to the extent that the obligation to pay such additional amounts or indemnification would not have arisen but for the representation set forth in the first sentence of Section 4.04(b) above made by the Lender not being true.
(c) If the Borrower pays any additional amount under this Section 4.04 with respect to taxes imposed on any payments made to or on behalf of a Lender becomes aware and such Lender determines in its sole discretion, but acting in good faith, that it has finally and irrevocably actually received or been granted realized in connection therewith any refund of tax, or any reduction of, or credit against, its tax liabilities (a refund "Tax Benefit"), such Lender shall pay to the Borrower an amount that the Lender shall, in respect of any Taxes as its sole discretion, but acting in good faith, determine is equal to the net benefit, after tax, which indemnification has been paid was obtained by the Borrower pursuant to this Section 3.03Lender as a consequence of such refund, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrowerreduction or credit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the Borrower agrees policies of such Lender, whether to promptly return any such refund seek a Tax Benefit and (plus interestii) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c4.04(c) shall require any the Lender to make available disclose any confidential information to the Borrower (including, without limitation, its tax returns (or any other information relating to its taxes that it deems confidentialreturns). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Each Lender shall use reasonable efforts (or any other recipient) under this Agreement may be consistent with legal and regulatory restrictions and subject to withholding tax under the FATCA, overall policy considerations of such Lender Lender)
(i) to file any certificate or recipient) shall deliver document or to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times furnish any information as reasonably requested by the Borrower pursuant to any applicable treaty, law or regulation or (ii) to designate a different applicable lending office of such Lender, if the making of such filing or the Administrative Agent, furnishing of such documentation prescribed by applicable law and information or the designation of such other lending office would avoid the need for or reduce the amount of any additional documentation reasonably requested amounts payable by the Borrower or and would not, in the Administrative Agent sole discretion of such Lender, be disadvantageous to comply with its withholding obligations, such Lender.
(e) The provisions of this Section 4.04 are subject to determine that such Lender the provisions of Section 13.18 (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under to the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such paymentextent applicable).
Appears in 1 contract
Net Payments. (a) All payments made by any Credit Party under any Credit Document (including, in the case of Holdings or the U.S. Borrower, in its capacity as a guarantor pursuant to Section 14 or 15, as the case may be) or under any Note will be made without setoff, counterclaim or other defense. Except as provided for in Section 3.03(b4.04(b), all such payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) excluding, except as provided in the second succeeding sentence, any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Lender pursuant to the laws of the jurisdiction under in which such recipient it is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Lender is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges thereto (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower (and any other Credit Party making the payment) agrees to pay the full amount of such Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deductionNote. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, withholding or payment been required or made then the respective Borrower (and any other Credit Party making the payment) shall be obligated to reimburse each Lender, upon the written request of such Lender, for the net additional taxes (after taking into account available credits with respect to such Taxes. Subject withholding taxes) imposed on or measured by the net income of such Lender pursuant to Section 3.03(b)the laws of the jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as such Lender shall determine are payable by, or withheld from, such Lender in respect of such amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence, the respective Borrower (or Credit Party) will furnish to the Administrative Agent within 45 days after the date of the payment of any Taxes due pursuant to applicable law certified copies of tax receipts evidencing such payment by such Borrower (or the respective other Credit Party). The Credit Agreement Parties jointly and severally agree (and each Subsidiary Guarantor pursuant to its respective Subsidiary Guaranty, and the incorporation by reference therein of the provisions of this Section 4.04, shall agree) to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes so levied or imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.
(b) Each Lender that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the U.S. Borrower and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 1.13 or 13.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Sectiontransfer), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form W-8ECI or W-8IMY Form W-8BEN (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymenta complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s 's entitlement as of such date to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this AgreementAgreement and under any Note, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or reduction Form W-8BEN (such as statements certifying qualification for exemption with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest)interest exemption) (or successor form) certifying to such Lender's entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender agrees that from time to time after the Closing Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the U.S. Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation W-8ECI, Form W-8BEN (such as statements certifying qualification for exemption with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interestinterest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if with respect to payments under this Agreement and any Note, or it shall immediately notify the U.S. Borrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Lender continues shall not be required to deliver any such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the U.S. Borrower shall be entitled, to the extent it is required to do so entitled. Each by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable by the U.S. Borrower hereunder for the account of any Lender that which is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior extent that such Lender has not provided to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of U.S. Borrower U.S. Internal Revenue Service Form W-9 Forms that establish a complete exemption from such deduction or withholding and (or successor, substitute or other appropriate form prescribed by y) the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The U.S. Borrower shall not be obligated pursuant to Section 3.03(aSection
(a) hereof to pay additional amounts on account gross-up payments to be made to a Lender in respect of income or indemnify with respect to similar taxes imposed by the United States withholding taxes if (I) such Lender has not provided to the U.S. Borrower the Internal Revenue Service Forms required to be provided to the U.S. Borrower pursuant to this Section 4.04(b) or backup withholding taxes (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such taxes arise solely due forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under the contrary contained in the preceding sentence or elsewhere in this Section 3.03(b4.04 and except as set forth in Section 13.04(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner and to the extent set forth in Section 3.03(a4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes amounts deducted or withheld by it as described in the immediately preceding sentence (x) as a result of any changes after the Effective Date (or, if later, the date in which such Lender becomes a became party to this Agreement Agreement) in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
income or similar taxes or (cy) If any Lender becomes aware that it has finally and irrevocably received or been granted as a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary result of the Treasury purchase of a participation as required by Section 1.14 following the United States occurrence of America or to determine the amount to deduct and withhold from such paymenta Sharing Event.
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient pursuant to the laws of the jurisdiction under which such recipient is organized or the jurisdiction in which the principal office or Applicable Lending Office of such recipient, as applicable, is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.
(b) Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide to the Borrower and the Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN or W-8BEN-E (as applicable), W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or W-8BEN-E (as applicable) or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent that such taxes arise solely due to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.the
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the Borrower hereunder, hereunder or under any Note will be made without setoff, counterclaim or any other Loan Document defense. Except as provided in Section 4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) excluding, with respect to the Administrative Agent or any Bank, except as provided in the second succeeding sentence, any tax imposed on or measured by the net income or net profits of the Administrative Agent or a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Bank pursuant to the laws of the jurisdiction under in which such recipient it is organized or the jurisdiction in which the principal office is located, or Applicable Lending Office in the case of any Bank, the applicable lending office of such recipient, as applicable, Bank is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies levies, imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such LenderNote. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, Taxes is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, receipts evidencing such payment by the Borrower.
(b) Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide to the Borrower and the Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent that such taxes arise solely due to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.the
Appears in 1 contract
Sources: Credit Agreement (Amtrol Inc /Ri/)
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the each Borrower hereunder, under any Note or any other Loan Document Document, and all payments made by the Company pursuant to its guaranty obligations under Article X, shall be made without setoff, counterclaim or other defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding excluding, except as provided in the second succeeding sentence, any (iA) any franchise tax (imposed in lieu of net income taxes) and taxes imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Lender pursuant to (i) the laws of the jurisdiction under which such recipient Lender is organized or the jurisdiction in which the principal office or Applicable the Domestic Lending Office or Foreign Lending Office of such recipientLender, as applicable, is located or any subdivision thereof or therein, therein or (ii) the laws of any jurisdiction as a result of a present or former connection between such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Lender’s having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement, any Note or any other Loan Document) and (B) any branch profits tax taxes imposed on any recipient by the United States of America or any similar tax imposed by any other jurisdiction described in clause (A) above (all such taxes described in this parenthetical, as modified by the jurisdiction proviso at the end of the recipient’s organization principal office or Applicable Lending Officesucceeding sentence, (iii) any tax attributable being referred to Lender’s failure to comply with Section 3.03(bcollectively as “Excluded Taxes”)), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxesExcluded Taxes, levies levies, imposts, duties, fees, assessments or other charges (all such non-excluded taxesExcluded Taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the applicable Borrower agrees to pay such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount provided for herein or in such Note or in such other Loan Document; provided, however, that to the extent that any such payment, on the date that such payment falls due, could have been made without any such deduction or withholding if such payment were made to a Qualifying Lender, but the Lender would have received had no deductionto which such payment is made has ceased to be a Qualifying Lender other than as a result of any change in law occurring after the date of this Agreement, withholding or payment been then such Borrower shall not be required or made with respect to pay such additional amounts attributable to such TaxesLender’s failure to be a Qualifying Lender. Subject to Each Qualifying Lender whose qualifying status is based upon a double tax treaty, or a relevant tax law in a jurisdiction of the relevant Borrower, shall cooperate in completing any procedural formalities (including, without limitation, the completion and provision of the Internal Revenue Service Forms, the Withholding Certificate and an Exemption Certificate (if applicable) as described in Section 3.03(b)) necessary to obtain such Qualifying Lender status and shall promptly inform the Borrowers and the Global Agent of any change affecting its Qualifying Lender status. If any amounts are payable in respect of Taxes pursuant to the sentence before the preceding sentence, the such Borrower will indemnify and hold harmless the Administrative Agent and agrees to reimburse each Lender, and reimburse the Administrative Agent or within 15 Business Days of a written request of such Lender upon its written request, for taxes imposed on or measured by the amount net income of such Lender by reason of the payment of such Taxes and net of any Taxes imposed on and paid tax benefits received by such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which the principal office or Domestic Lending Office or Foreign Lending Office of such Lender is located, as the case may be, or under the laws of any political subdivision or taxing authority of any such jurisdiction in which the principal office or the Domestic Lending Office or Foreign Lending Office of such Lender is located, as the case may be, and for any withholding of taxes measured by net income imposed by any relevant jurisdiction of the Borrowers, the United States of America or, in the case of any Canadian Lender, Canada as such Lender shall determine are payable by, or withheld from, such Lender in respect of such amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence, which request shall be accompanied by a statement from such Lender setting forth, in reasonable detail, the computations used in determining such amounts. The Each Borrower will furnish to the Administrative Global Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by such Borrower. Each Borrower will indemnify and hold harmless the BorrowerGlobal Agent and each Lender, and reimburse the Global Agent or such Lender upon its written request, for the amount of any Taxes attributable to such Borrower so levied or imposed and paid or withheld by such Lender.
(bi) Each Lender that is not becomes a United States Person (as such term is defined in Section 7701(a)(30) of Lender on the Code) for Federal income tax purposes Closing Date shall be a Qualifying Lender. Each Lender and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower Participant agrees to provide to the Borrower Company and the Administrative Global Agent on or prior to the Closing Date, or in the case of a Participant or a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 11.05 (unless the respective Lender or Participant was already a Lender or Participant hereunder immediately prior to such assignment or transfer and such Lender or Participant is in compliance with the provisions of this Section), on prior to the date of such assignment or transfer to such LenderLender or Participant, and from time to time thereafter if required by the Borrower Company or the Administrative Global Agent: (1) either (x) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN▇-▇, W-8ECI▇-▇▇▇▇, W-8EXP ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymentforms) certifying to such Lender’s or Participant’s entitlement to a complete exemption from from, or a reduced rate of withholding of from, United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along or (y) in the case of a Lender or Participant that is not incorporated or organized under the laws of the United States or a state therein and is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” a certificate substantially in the form of Exhibit H (any such certificate, an “Exemption Certificate”) and an Internal Revenue Service Form W-8BEN or, in either case, any subsequent versions thereof or successors thereto, properly completed and duly executed by such Lender or Participant claiming complete exemption from U.S. federal withholding tax on all interest payments by the Borrowers made under this Agreement, any Note or any other Loan Document, (2) a certificate substantially in the form of Exhibit I (any such certificate, a “Witholding Certificate”), executed by an authorized officer of such Lender and other appropriate documentation establishing certifying to such Lender’s or Participant’s entitlement to a complete exemption from, or reduction rate of, withholding tax under the relevant tax law (such as statements certifying qualification for exemption modified by any relevant double tax treaty) in each relevant jurisdiction of the Borrowers with respect to portfolio interestpayments of interest to be made under this Agreement, any Note or any other Loan Document and (3) a certificate substantially in the form of Exhibit J (any such certificate, a “Qualifying Certificate”), executed by an authorized officer of such Lender or Participant, certifying to such Lender’s or Participant’s status as a Swiss Qualifying Lender. In addition, each Lender and Participant agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower Company and the Administrative Global Agent (or, in the case of a Participant, to the Lender from which the related participation shall have been purchased) two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing Form, an Exemption Certificate (if applicable), a Withholding Certificate and a Qualifying Certificate and related documentation, as the case may be, and such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) other forms as may be required in order to confirm or establish the entitlement of such Lender or Participant to a continued exemption from from, or reduction in United States rate of, withholding tax if in each relevant jurisdiction of the Lender continues Borrower with respect to be so entitled. payments under this Agreement, any Note or any other Loan Document.
(ii) Each Lender and Participant that is a United States Person (as such term is defined in Section 7701(a)(30) not incorporated or organized under the laws of the Code) jurisdiction under which a Foreign Subsidiary Borrower is incorporated or organized or is not a resident for Federal income taxation purposes of such Foreign Subsidiary Borrower’s country of tax purposes residence, shall deliver to the Borrower Global Agent, the Company, and the Administrative Agentapplicable Governmental Authority (if required), on or prior to the Closing Date, date such Lender or in the case of Participant becomes a Lender or Participant under this Agreement, any form or certificate required in order that is an assignee or transferee of an interest any payment by such Foreign Subsidiary Borrower under this Agreement pursuant or a Note to the Lender may be made without, or at a reduced rate of, withholding tax imposed on such payment under the laws of the jurisdiction under which such Foreign Subsidiary Borrower is incorporated or organized or is otherwise a resident for taxation purposes.
(iii) Notwithstanding anything to the contrary contained in Section 3.03(a), but subject to Section 11.06 11.05(c) and the immediately succeeding sentence, (unless x) each Borrower shall be entitled, to the respective extent it is required to do so by law, to deduct or withhold Taxes imposed by each relevant jurisdiction of the Borrowers (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender was already a Lender hereunder immediately prior that has not provided to the Company such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 Forms, Exemption Certificate (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(bif applicable) to deliver and Withholding Certificate and related documentation that establish a form or certificate that it is not legally entitled to deliver. The complete exemption from withholding and (y) no Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay gross-up payments to be made to a Lender in respect of Taxes of such Lender or any additional amounts on account with respect thereto (A) if such Lender (or related Participant) has not provided to the Company the Internal Revenue Service Forms or statement required to be provided to the Company pursuant to this Section 3.03(b), (B) if the Company has been provided a Withholding Certificate from such Lender (or related Participant) providing for a zero rate of or indemnify withholding tax under the relevant tax law in each relevant jurisdiction of the Borrowers with respect to United States withholding taxes payments of interest to be made under this Agreement, which Withholding Certificate has proven to be inaccurate, (C) if the Lender was not a Qualifying Lender on the date that it became a Lender under this Agreement, or backup withholding taxes (D) to the extent that such taxes arise solely due forms do not establish a complete exemption from withholding of such Taxes. Notwithstanding anything to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under the contrary contained in the preceding sentence or elsewhere in this Section 3.03(b3.03 and except as specifically provided for in Section 11.05(c). Except to the extent otherwise provided in this Agreement, the each Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes deducted or withheld by it as described in the previous sentence as a result of any changes after the date in which that such Lender becomes became a party to Lender under this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar Taxes.
(c) If (i) a Lender or the Global Agent is entitled to claim a refund from a Governmental Authority in respect of Taxes or Other Taxes as to which indemnification has been paid by any Borrower pursuant to this Section or Section 11.01 and (ii) such Lender becomes aware or the Global Agent, in its sole opinion, reasonably determines the amount of such refund, net of any costs incurred in pursuing such refund, is material, it shall make a timely claim to such Governmental Authority for such refund. If any Lender, in its sole opinion, reasonably determines that it has finally and irrevocably received or been granted a refund in respect of any Taxes or Other Taxes paid as to which indemnification has been paid by the any Borrower pursuant to this Section, or Section 3.0311.01, it shall promptly remit to such Borrower such refund (including any interest received in respect thereof) to the relevant Borrower), net of all out-of-pocket costs and expenses to incurred in obtaining the Borrowerrefund; provided, however, that the such Borrower agrees to promptly return any such refund (plus interestincluding any interest received in respect thereof) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential)authority. Any such Lender shall use commercially reasonable efforts to provide the such Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under Notwithstanding anything in this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and contrary, for purposes of payments made by any Canadian Borrower, no Lender shall be entitled to additional amounts under Section 3.03 to the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine extent that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied fails to deal with its obligations under such Canadian Borrower on an arm’s length basis within the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary meaning of the Treasury of the United States of America or to determine the amount to deduct and withhold from such paymentIncome Tax Act (Canada).
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the Borrower hereunder, Borrowers and the other Credit Parties hereunder and under any Note other Credit Document will be made without setoff, counterclaim or any other Loan Document defense. Except as provided in Section 5.04(b), and except as required by applicable law, all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax or withholding on account of tax imposed on or measured by the net income or net profits of a recipient Lender or the Administrative Agent (as applicable) and any franchise taxes or alternative minimum and branch profits taxes imposed on the recipient pursuant to the laws of the jurisdiction under in which such recipient it is resident or organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, Lender or the Administrative Agent (as applicable, ) is located or any political subdivision thereof or therein, or any tax imposed as a result of a present or former connection between such Lender or the Administrative Agent (as applicable) and the jurisdiction imposing such tax (other than connections arising only from such Lender or the Administrative Agent (as applicable) having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code)Lender, any U.S. federal or Netherlands withholding tax that is in effect and would apply to imposed on amounts payable to such Lender at the time it such Lender becomes a party to this Agreement hereto (or designates a new Applicable Lending Officelending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled entitled, at the time of designation of a new Applicable Lending Office lending office (or assignment assignment), to receive additional amounts from the such U.S. Borrower with respect to any such withholding tax pursuant to this Section 3.035.04(a), (iii) or taxes attributable to a Lender’s failure to comply with Section 5.04(e) and (viv) any U.S. federal withholding taxes tax imposed pursuant to the under FATCA (subparagraphs (i) through (iv) together, “Excluded Taxes”)) and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies levies, imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower (and any other Credit Party making the respective payment or which has guaranteed the obligations of the relevant Borrower) agrees to pay the full amount of such Taxes, including Taxes on such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.035.04(a) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Documentthat, after making such withholding or deduction for or on account of any Taxes Taxes, each payment of amounts due under this Agreement will not be less than the amount such Lender that would have received been paid if no such Taxes had no deductionbeen withheld or deducted. The respective Borrower (or other Credit Party) will, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless upon the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its Agent’s written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent Agent, within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, Taxes is due pursuant to applicable law law, certified copies of tax receipts, or other evidence satisfactory to the respective Lender, receipts evidencing such payment by such Borrower (or other Credit Party) or other evidence of payment reasonably satisfactory to the BorrowerAdministrative Agent.
(b) Subject to Section 14.07, the U.S. Borrowers (jointly and severally) or the Dutch Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Subject to Section 14.07, the U.S. Borrowers (jointly and severally) or the Dutch Borrowers (jointly and severally) shall, as applicable, agree (and the applicable Subsidiary Guarantors agree) to indemnify each Lender or the Administrative Agent, as the case may be, within 10 days after demand therefor, for the full amount of any Taxes (including Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Lender or required to be withheld or deducted from a payment to such Lender 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 the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that is any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of Credit Parties, subject to Section 14.07, to do so), (ii) any taxes attributable to such Lender’s failure to comply with the provisions of Section 13.04(e) relating to the maintenance of a United States Person Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, 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 term is defined in Section 7701(a)(30payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d).
(i) of the Code) for Federal income tax purposes and Any Lender that is entitled to claim an exemption from or reduction in United States of withholding tax with respect to a payment payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrower agrees Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to provide be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.04(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the Closing Date, or in the case of date on which such Lender becomes a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by upon the Borrower reasonable request of the Company or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN), W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies executed originals of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or successorprior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), substitute whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other appropriate applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty;
(ii) executed originals of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E; or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of 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 the Internal Revenue ServiceCompany or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable). No , such Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent Company and the Administrative Agent at the time or times prescribed by law such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such taxes arise solely due to a Lender has complied with such Lender’s failure obligations under FATCA or to deliver forms that it was legally entitled determine the amount to but failed deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes FATCA after the date in which such of this Agreement. Each Lender agrees that if any form or certification it previously delivered expires or becomes a party to this Agreement obsolete or inaccurate in any applicable lawrespect, treaty, governmental rule, regulation, guideline it shall update such form or order, certification or promptly notify the Company and the Administrative Agent in the interpretation thereof, relating writing of its legal inability to the deducting or withholding of Taxesdo so.
(cf) If any the Administrative Agent or a Lender becomes aware determines, in its sole discretion, that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification it has been indemnified by a Borrower or with respect to which a Borrower has paid by the Borrower additional amounts pursuant to this Section 3.035.04(a), it shall promptly remit pay to such Borrower an amount equal to such refund (including any interest received in respect thereof) but only to the relevant Borrowerextent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket costs expenses of the Administrative Agent or such Lender, as the case may be, and expenses without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided that the U.S. Borrowers (on a joint and several basis) and the Dutch Borrowers (on a joint and several basis), as the case may be, upon the request of the Administrative Agent or such Lender, agree to repay the amount paid over to any such Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to the relevant such jurisdiction or any political subdivision or taxing authority andthereof; provided, provided further, that nothing no Borrower shall be required to repay the Administrative Agent or such Lender an amount in excess of the amount paid over by such party to any such Borrower pursuant to this Section 3.03(c) 5.04(f). This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts ) to provide the Borrower with a copy of Company, any notice of assessment from the relevant taxing authority (redacting other Borrower, any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (other Credit Party or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver Person. Notwithstanding anything to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.contrary in this Section
Appears in 1 contract
Sources: Abl Credit Agreement (Tesla, Inc.)
Net Payments. (a) All payments made by any Credit Party under any Credit Document (including, in the case of Holdings or the U.S. Borrower, in its capacity as a guarantor pursuant to Section 14 or 15, as the case may be) or under any Note will be made without setoff, counterclaim or other defense. Except as provided for in Section 3.03(b5.04(b), all such payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income income, capital, or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Lender pursuant to the laws of the jurisdiction under in which such recipient it is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Lender is located or any subdivision thereof or therein, therein and (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any U.S. withholding tax that is in effect and would apply to imposed on amounts payable to such Lender with respect to any such payments of the U.S. Borrower at the time it such Lender becomes a party to this Agreement (or designates a new Applicable Lending Office)Agreement, except to the extent that such Lender Lender’s assignor (or assignorif any) was entitled entitled, at the time of designation of a new Applicable Lending Office or assignment assignment, to receive additional amounts from the U.S. Borrower with respect to any such withholding tax taxes pursuant to this Section 3.03paragraph 5.04(a)) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges thereto (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower agrees (or other Credit Party making the payment) shall, subject to the limitations with respect to the application of this Section 5.04 set forth in the first sentence of Section 2.12(a) and in the penultimate sentence of Section 13.04(b), pay the full amount of such Taxes to the appropriate Governmental Authority, and shall pay such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deductionNote. The respective Borrower (or Credit Party) will furnish to the Administrative Agent within 45 days after the date of the payment of any Taxes due pursuant to applicable law certified copies of tax receipts or, withholding to the extent such tax receipts are not customarily provided by the relevant Governmental Authority, other evidence of payment of such Tax reasonably acceptable to the Lender, evidencing such payment by such Borrower (or payment been required or made with respect the respective other Credit Party). The Credit Agreement Parties jointly and severally agree (and each Subsidiary Guarantor pursuant to such Taxes. Subject its respective Subsidiary Guaranty, and the incorporation by reference therein of the provisions of this Section 5.04, shall agree) to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes levied or imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.
(b) Each Lender that is a Lender to the U.S. Borrower and that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the U.S. Borrower and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender that is a Lender to the U.S. Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 Sections 2.13 or 13.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Sectiontransfer), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form W-8ECI or W-8IMY Form W-8BEN (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymenta complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this AgreementAgreement and under any Note, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or reduction Form W-8BEN (such as statements certifying qualification for exemption with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D appropriately completed (any such certificate, a “Section 5.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest)interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender that is a Lender to the U.S. Borrower agrees that from time to time after the Closing Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the U.S. Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation W-8ECI, Form W-8BEN (such as statements certifying qualification for exemption with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interestinterest exemption) and a Section 5.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if with respect to payments under this Agreement and any Note, or it shall immediately notify the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the U.S. Borrower and the Administrative AgentAgent of its inability to deliver any such Form or Certificate, on in which case such Lender shall not be required to deliver any such Form or prior Certificate pursuant to the Closing Datethis Section 5.04(b); provided, or however, in the case of a event that the Lender that is an assignee cannot deliver any Form or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior Certificate which certifies to such assignment or transfer and Lender’s complete exemption from United States withholding tax as of such Lender is in compliance with date, the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The U.S. Borrower shall not be obligated pursuant to Section 3.03(a5.04(a) hereof to pay additional amounts on account gross-up payments to be made to such Lender in respect of or indemnify with respect to United States withholding taxes or backup withholding taxes except to the extent that such taxes arise solely due to a the Lender’s failure inability to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to provide the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted Form or withheld by it Certificate is directly as a result of any changes changes, after the date in which such the Lender becomes became a party to this Agreement Agreement, in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxessuch United States withholding taxes. Notwithstanding anything to the contrary contained in Section 5.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the U.S. Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable by the U.S. Borrower hereunder for the account of any Lender that is a Lender to the U.S. Borrower and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes to the extent that such Lender has not provided to the U.S. Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the U.S. Borrower shall not be obligated pursuant to Section 5.04(a) hereof to gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the United States (including, without limitation, United States withholding taxes) if (I) such Lender has not provided to the U.S. Borrower the Internal Revenue Service Forms required to be provided to the U.S. Borrower pursuant to this Section 5.04(b) or (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding sentence or elsewhere in this Section 5.04 and except as set forth in Section 13.04(b), the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in Section 5.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence (x) from amounts payable to or for the account of such Lender under Section 2.01(e), but only if and to the extent the amounts deducted or withheld exceed the amounts that would have been deducted or withheld if the amounts payable to such Lender under Section 2.01(e) were instead payable to or for the account of such Lender with respect to interest payments on a Tranche A Term Loan or a Tranche B Term Loan, as applicable, or (y) as a result of any changes after the Effective Date (or, if later, after the date such Lender became party to this Agreement) in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar taxes.
(c) If any Borrower pays any additional amount under this Section 5.04 to a Lender becomes aware and such Lender determines in its sole good faith discretion that it has finally and irrevocably actually received or been granted realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a refund “Tax Benefit”), such Lender shall pay to such Borrower an amount that the Lender shall, in respect of any Taxes as its sole good faith discretion, determine is equal to the net benefit, after tax, which indemnification has been paid was obtained by the Borrower pursuant to this Section 3.03, it shall promptly remit Lender in such refund (including any interest received in respect thereof) to the relevant Borrower, net year as a consequence of all out-of-pocket costs and expenses to the Borrowersuch Tax Benefit; provided, however, that (i) any Lender may determine, in its sole good faith discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to such Borrower pursuant to this Section 5.04(c) shall be treated as a Tax for which such Borrower is obligated to indemnify such Lender pursuant to this Section 5.04 without any exclusions or defenses; (iii) nothing in this Section 5.04(c) shall require the Lender to disclose any confidential information to such Borrower (including, without limitation, its tax returns); and (iv) no Lender shall be required to pay any amounts pursuant to this Section 5.04(c) at any time which a Default or Event of Default exists.
(d) Each Lender agrees to promptly return any use reasonable efforts (consistent with legal and regulatory restrictions and subject to overall policy considerations of such refund (plus interestLender) to such Lender file any certificate or document or to furnish to the Non-U.S. Borrower any information, in each case, as reasonably requested by the Non-U.S. Borrower that may be necessary to establish any available exemption from, or reduction in the event such Lender is required to repay such refund to the relevant taxing authority andamount of, provided furtherany Taxes; provided, however, that nothing in this Section 3.03(c5.04(c) shall require any a Lender to make available disclose any confidential information (including, without limitation, its tax returns (or any other information relating to its taxes that it deems confidentialcalculations). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the Borrower hereunder, Borrowers and the other Credit Parties hereunder and under any Note other Credit Document will be made without setoff, counterclaim or any other Loan Document defense. Except as provided in Section 5.04(b), and except as required by applicable law, all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax or withholding on account of tax imposed on or measured by the net income or net profits of a recipient Lender or the Administrative Agent (as applicable) and any franchise taxes or alternative minimum and branch profits taxes imposed on the recipient pursuant to the laws of the jurisdiction under in which such recipient it is resident or organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, Lender or the Administrative Agent (as applicable, ) is located or any political subdivision thereof or therein, or any tax imposed as a result of a present or former connection between such Lender or the Administrative Agent (as applicable) and the jurisdiction imposing such tax (other than connections arising only from such Lender or the Administrative Agent (as applicable) having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code)Lender, any U.S. federal or Netherlands withholding tax that is in effect and would apply to imposed on amounts payable to such Lender at the time it such Lender becomes a party to this Agreement hereto (or designates a new Applicable Lending Officelending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled entitled, at the time of designation of a new Applicable Lending Office lending office (or assignment assignment), to receive additional amounts from the such U.S. Borrower with respect to any such withholding tax pursuant to this Section 3.035.04(a), (iii) or taxes attributable to a Lender’s failure to comply with Section 5.04(e) and (viv) any U.S. federal withholding taxes tax imposed pursuant to the under FATCA (subparagraphs (i) through (iv) together, “Excluded Taxes”)) and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies levies, imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower (and any other Credit Party making the respective payment or which has guaranteed the obligations of the relevant Borrower) agrees to pay the full amount of such Taxes, including Taxes on such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.035.04(a) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Documentthat, after making such withholding or deduction for or on account of any Taxes Taxes, each payment of amounts due under this Agreement will not be less than the amount such Lender that would have received been paid if no such Taxes had no deductionbeen withheld or deducted. The respective Borrower (or other Credit Party) will, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless upon the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its Agent’s written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent Agent, within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, Taxes is due pursuant to applicable law law, certified copies of tax receipts, or other evidence satisfactory to the respective Lender, receipts evidencing such payment by such Borrower (or other Credit Party) or other evidence of payment reasonably satisfactory to the BorrowerAdministrative Agent.
(b) Subject to Section 14.07, the U.S. Borrowers (jointly and severally) or the Dutch Borrowers (jointly and severally), as applicable, agree (and the applicable Subsidiary Guarantors agree) to timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(c) Subject to Section 14.07, the U.S. Borrowers (jointly and severally) or the Dutch Borrowers (jointly and severally) shall, as applicable, agree (and the applicable Subsidiary Guarantors agree) to indemnify each Lender or the Administrative Agent, as the case may be, within 10 days after demand therefor, for the full amount of any Taxes (including Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Lender or required to be withheld or deducted from a payment to such Lender 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 the Company by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Taxes attributable to such Lender (but only to the extent that is any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of Credit Parties, subject to Section 14.07, to do so), (ii) any taxes attributable to such Lender’s failure to comply with the provisions of Section 13.04(e) relating to the maintenance of a United States Person Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, 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 term is defined in Section 7701(a)(30payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (d).
(i) of the Code) for Federal income tax purposes and Any Lender that is entitled to claim an exemption from or reduction in United States of withholding tax with respect to a payment payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrower agrees Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to provide be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.04(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
(A) any Lender that is a U.S. Person shall deliver to the Company and the Administrative Agent on or prior to the Closing Date, or in the case of date on which such Lender becomes a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by upon the Borrower reasonable request of the Company or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN), W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies executed originals of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or successorprior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), substitute whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other appropriate applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding tax pursuant to the “business profits” or “other income” article of such tax treaty;
(ii) executed originals of Internal Revenue Service Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E; or
(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of Internal Revenue Service Form W-8IMY, accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed originals of 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 the Internal Revenue ServiceCompany or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable). No , such Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent Company and the Administrative Agent at the time or times prescribed by law such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such taxes arise solely due to a Lender has complied with such Lender’s failure obligations under FATCA or to deliver forms that it was legally entitled determine the amount to but failed deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes FATCA after the date in which such of this Agreement. Each Lender agrees that if any form or certification it previously delivered expires or becomes a party to this Agreement obsolete or inaccurate in any applicable lawrespect, treaty, governmental rule, regulation, guideline it shall update such form or order, certification or promptly notify the Company and the Administrative Agent in the interpretation thereof, relating writing of its legal inability to the deducting or withholding of Taxesdo so.
(cf) If any the Administrative Agent or a Lender becomes aware determines, in its sole discretion, that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification it has been indemnified by a Borrower or with respect to which a Borrower has paid by the Borrower additional amounts pursuant to this Section 3.035.04(a), it shall promptly remit pay to such Borrower an amount equal to such refund (including any interest received in respect thereof) but only to the relevant Borrowerextent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket costs expenses of the Administrative Agent or such Lender, as the case may be, and expenses without interest (other than any interest paid by the relevant jurisdiction or any political subdivision or taxing authority thereof with respect to such refund), provided that the U.S. Borrowers (on a joint and several basis) and the Dutch Borrowers (on a joint and several basis), as the case may be, upon the request of the Administrative Agent or such Lender, agree to repay the amount paid over to any such Borrower (plus any penalties, interest or other charges imposed by the relevant jurisdiction or any political subdivision or taxing authority thereof) to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to the relevant such jurisdiction or any political subdivision or taxing authority andthereof; provided, provided further, that nothing no Borrower shall be required to repay the Administrative Agent or such Lender an amount in excess of the amount paid over by such party to any such Borrower pursuant to this Section 3.03(c) 5.04(f). This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts ) to provide the Borrower with a copy of Company, any notice of assessment from the relevant taxing authority (redacting other Borrower, any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (other Credit Party or any other recipientPerson. Notwithstanding anything to the contrary in this Section 5.04(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.04(f) under this Agreement may be the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to withholding tax under the FATCAindemnification and giving rise to such refund had not been deducted, such Lender (withheld or recipient) shall deliver to the Borrower otherwise imposed and the Administrative Agent, at the time indemnification payments or times prescribed by law and at additional amounts with respect to such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such paymentTax had never been paid.
Appears in 1 contract
Net Payments. (a) All payments made by any Credit Party under any Credit Document (including, in the case of Holdings or the U.S. Borrower, in its capacity as a guarantor pursuant to Section 14 or 15, as the case may be) or under any Note will be made without setoff, counterclaim or other defense. Except as provided for in Section 3.03(b4.04(b), all such payments made by the Borrower hereunder, under any Note or any other Loan Document will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) excluding, except as provided in the second succeeding sentence, any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Lender pursuant to the laws of the jurisdiction under in which such recipient it is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Lender is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges thereto (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower (and any other Credit Party making the payment) agrees to pay the full amount of such Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deductionNote. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, withholding or payment been required or made then the respective Borrower (and any other Credit Party making the payment) shall be obligated to reimburse each Lender, upon the written request of such Lender, for the net additional taxes (after taking into account available credits with respect to such Taxes. Subject withholding taxes) imposed on or measured by the net income of such Lender pursuant to Section 3.03(b)the laws of the jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as such Lender shall determine are payable by, or withheld from, such Lender in respect of such amounts so paid to or on behalf of such Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence, the respective Borrower (or Credit Party) will furnish to the Administrative Agent within 45 days after the date of the payment of any Taxes due pursuant to applicable law certified copies of tax receipts evidencing such payment by such Borrower (or the respective other Credit Party). The Credit Agreement Parties jointly and severally agree (and each Subsidiary Guarantor pursuant to its respective Subsidiary Guaranty, and the incorporation by reference therein of the provisions of this Section 4.04, shall agree) to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes so levied or imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.
(b) Each Lender that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the U.S. Borrower and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 1.13 or 13.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Sectiontransfer), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form W-8ECI or W-8IMY Form W-8BEN (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymenta complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s 's entitlement as of such date to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this AgreementAgreement and under any Note, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or reduction Form W-8BEN (such as statements certifying qualification for exemption with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest)interest exemption) (or successor form) certifying to such Lender's entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender agrees that from time to time after the Closing Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the U.S. Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation W-8ECI, Form W-8BEN (such as statements certifying qualification for exemption with respect to the benefits of any income tax treaty), or Form W-8BEN (with respect to the portfolio interestinterest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if with respect to payments under this Agreement and any Note, or it shall immediately notify the U.S. Borrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Lender continues shall not be required to deliver any such Form or Certificate pursuant to this Section 4.04(b). Notwithstanding anything to the contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the U.S. Borrower shall be entitled, to the extent it is required to do so entitled. Each by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable by the U.S. Borrower hereunder for the account of any Lender that which is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior extent that such Lender has not provided to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of U.S. Borrower U.S. Internal Revenue Service Form W-9 Forms that establish a complete exemption from such deduction or withholding and (or successor, substitute or other appropriate form prescribed by y) the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The U.S. Borrower shall not be obligated pursuant to Section 3.03(a4.04(a) hereof to pay additional amounts on account gross-up payments to be made to a Lender in respect of income or indemnify with respect to similar taxes imposed by the United States withholding taxes if (I) such Lender has not provided to the U.S. Borrower the Internal Revenue Service Forms required to be provided to the U.S. Borrower pursuant to this Section 4.04(b) or backup withholding taxes (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such taxes arise solely due forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under the contrary contained in the preceding sentence or elsewhere in this Section 3.03(b4.04 and except as set forth in Section 13.04(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.forth
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the Borrower hereunder, hereunder or under any Note will be made without setoff, counterclaim or other defense (which payment shall not be deemed a waiver by the Borrower of any other Loan Document claims arising under this Agreement). Except as provided in Section 4.4(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments payment (but excluding (i) excluding, except as provided in the second succeeding sentence, any tax (including any franchise tax) imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient Lender pursuant to the laws of the jurisdiction under in which such recipient it is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Lender is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to thereto (all such non-excluded nonexcluded taxes, levies levies, imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.every
(b) Each Lender that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the Borrower and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 1.13 or 12.4 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Sectiontransfer), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form 4224 or W-8IMY 1001 (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymentsuccessor forms) certifying to such Lender’s 's entitlement to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this AgreementAgreement and under any Note, or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit C (any Note such certificate, a "Section 4.4(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8 (or any other Loan Document, along with any other appropriate documentation establishing successor form) certifying to such Lender's entitlement to a complete exemption or reduction (such as statements certifying qualification for exemption from United States withholding tax with respect to portfolio interest)payments of interest to be made under this Agreement and under any Note. In addition, each Lender agrees that from time to time after the Closing Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver promptly to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing 4224 or 1001, or Form W-8 and a Section 4.4(b)(ii) Certificate, as the case may be, and such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if with respect to payments under this Agreement and any Note, or it shall immediately notify the Borrower and the Agent of its inability to deliver any such Form or Certificate in which case such Lender continues shall not be required to deliver any such Form or Certificate pursuant to this Section 4.4(b). Notwithstanding anything to the contrary contained in Section 4.4(a), but subject to Section 12.4(b) and the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so entitled. Each by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender that which is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes shall deliver to the extent that such Lender has not provided to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of U.S. Internal Revenue Service Form W-9 Forms that establish a complete exemption from such deduction or withholding and (or successor, substitute or other appropriate form prescribed by y) the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a4.4(a) hereof to pay additional amounts on account gross-up payments to be made to a Lender in respect of income withholding or indemnify with respect to similar taxes imposed by the United States withholding taxes if (I) such Lender has not provided to the Borrower the Internal Revenue Service Forms required to be provided to the Borrower pursuant to this Section 4.4(b) or backup withholding taxes (II) in the case of a payment, other than interest, to a Lender described in clause (ii) above, to the extent that such taxes arise solely due Forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under the contrary contained in the preceding sentence or elsewhere in this Section 3.03(b4.4 and except as set forth in Section 12.4(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender and the Agent in the manner and to the extent set forth in Section 3.03(a4.4(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the date in which such Lender becomes a party to this Agreement Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar Taxes.
(c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.
Appears in 1 contract
Sources: Loan Agreement (Grey Wolf Inc)
Net Payments. (a) Except as provided for in Section 3.03(b) or (c), all payments made by the Borrower hereunder, under any Note or any other Loan Document Document, including all payments made by the Borrower pursuant to its guaranty obligations under Section 2.15, will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding excluding, with respect to the Administrative Agent, any Lender, or any other recipient of any payment made by the Borrower hereunder, (i) any tax imposed on or measured by the overall net income or net profits of a recipient such Person and franchise taxes or alternative minimum taxes (in lieu of income taxes) imposed on the recipient it pursuant to the laws Laws of the jurisdiction under which such recipient Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office of such recipientLender, as applicable, is located or any subdivision thereof or therein, and (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding similar taxes imposed pursuant to the FATCA by any jurisdiction in which such Person is located) and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges other than those resulting from the gross negligence or willful misconduct of the Administrative Agent, any Lender, or any other recipient of any payment made by the Borrower hereunder (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes and, subject to Section 3.03(b) or (c), such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount provided for herein or in such Lender would have received had no deduction, withholding Note or payment been required or made with respect to in such Taxesother Loan Document. Subject to Section Sections 3.03(b) and (c), the Borrower will indemnify and hold harmless the Administrative Agent and each any Lender, and reimburse the Administrative Agent or such Lender upon within 10 days of its written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any such Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence reasonably satisfactory to the respective Lender, evidencing such payment by the Borrower.
(b) Each Lender that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide to the Borrower and the Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent that such taxes arise solely due to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by or on behalf of the Borrower hereunder, Borrowers hereunder and under any Note will be made without setoff, counterclaim or any other Loan Document defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein Indemnified Taxes with respect to such payments (but excluding (i) payments, unless required by applicable law. If any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient pursuant to the laws of the jurisdiction under which such recipient is organized or the jurisdiction in which the principal office or Applicable Lending Office of such recipient, as applicable, is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if any Indemnified Taxes are so levied or imposed, the each Borrower or Guarantor, if applicable, agrees to pay the full amount of such Indemnified Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under this Agreement or under any Note will not be less than the amount provided for herein or under any other Loan Document, in such Note after withholding or deduction for or on account of any Taxes will not be less than the amount such Lender would have received had no deduction, withholding or payment been required or made with respect to such Indemnified Taxes. Subject to Section 3.03(b)The Borrowers or Guarantors, the Borrower will indemnify and hold harmless the Administrative Agent and each Lenderif applicable, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, Taxes is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, receipts evidencing such payment by such Borrower or Guarantor. The Borrowers or Guarantors, if applicable, agree to indemnify and hold harmless the BorrowerAdministrative Agent, each Lender and each Issuing Lender, and to reimburse such Person upon its written request, for the amount of any Indemnified Taxes so levied or imposed and paid by such Person.
(b) Each Without limiting the generality of Section 5.5(c), each Lender, each Issuing Lender and the Administrative Agent (1) that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal U.S. federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to (each, a payment by the Borrower “Foreign Lender”) agrees to provide deliver to the Borrower Borrowers and the Administrative Agent (or in the case of the Administrative Agent, to deliver to the Borrowers) on or prior to the Closing Datedate it becomes a party to this Agreement, or in one of the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 following: (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form W-8ECI or W-8IMY Form W-8BEN (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymenta complete exemption under an income tax treaty) (or successor forms) certifying to such LenderPerson’s entitlement as of such date to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, Agreement and under any Note or any other Loan Document, along with any other appropriate documentation establishing (ii) if such exemption Person is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or reduction Form W-8BEN (such as statements certifying qualification for exemption with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit L (any such certificate, a “Non-Bank Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interestinterest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note or (2) that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. federal income tax purposes, agrees to deliver to the Borrowers and the Administrative Agent (or in the case of the Administrative Agent, to the Borrowers) on or prior to the date it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9 certifying to such Person’s entitlement to exemption from United States federal backup withholding, unless such Lender demonstrates that it is treated as an exempt recipient under Treasury Regulation Section 1.6049-4(c)(1)(ii). In addition, the Administrative Agent, each Lender and each Issuing Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower Borrowers and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation W-8ECI, Form W-8BEN (such as statements certifying qualification for exemption with respect to the benefits of any income tax treaty), Form W-8BEN (with respect to the portfolio interestinterest exemption) and a Non-Bank Certificate, or Form W-9, as the case may be required (or any successor forms thereof), in order to confirm or establish the its continued entitlement of such Lender to a continued complete exemption from or reduction in United States withholding tax if or backup withholding with respect to payments under this Agreement and any Note, or it shall immediately notify the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower Borrowers and the Administrative Agent, on or prior to the Closing Date, or in the case Agent (if applicable) of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) its inability to deliver a any such form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent that such taxes arise solely due to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b5.5(b) (provided that delivery of such notification shall in no manner affect whether a Tax is an “Excluded Tax”). Except to the extent otherwise provided in this Agreement, the Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If any Lender, any Issuing Lender becomes aware that it has finally or the Administrative Agent is entitled to an exemption from or reduction in withholding Tax with respect to payments under this Agreement and irrevocably received any Note, then such Lender or been granted a refund in respect of any Taxes as such Issuing Lender and the Administrative Agent agree to which indemnification has been paid by the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) deliver to the relevant Borrower, net Company and the Administrative 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 all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refundwithholding.
(d) If a Each Foreign Lender shall, in the case of any payment made to a Lender (after December 31, 2012 under this Agreement, any Note or any Obligation that was not treated as outstanding for purposes of FATCA on March 18, 2012, provide any forms, documentation, or other recipient) under this Agreement may information as shall be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine demonstrate that such relevant Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct applicable reporting requirements of FATCA. For purposes of this Section 5.5(d), the term “FATCA” shall include any amendments thereof or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such paymentsuccessor provisions thereto.
Appears in 1 contract
Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the Borrower hereunder, Borrowers hereunder or under any Note will be made without setoff, counterclaim or other defense (except payment in full in accordance with the terms of this Agreement). Except as provided in Section 4.04(b) and (c) with respect to payments made by a Borrower hereunder or under any other Loan Document Note, all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to from or through which such payments originate or are made (but excluding excluding, (i) in the case of each Bank and the Administrative Agent, any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient pursuant to the laws of the jurisdiction under in which such recipient Bank or the Administrative Agent (as the case may be) is organized or any subdivision thereof or therein and (ii) in the case of each Bank, any tax imposed on or measured by net income or profits pursuant to the laws of the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such recipient, as applicable, Bank is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges thereto (all such non-excluded taxes, levies, imposts, duties, fees fees, assessments or other charges being referred to collectively as “"Taxes”"). Subject to Section 3.03(b), if If any Taxes are so levied or imposed, the respective Borrower agrees to pay the full amount of such Taxes, and such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note this Agreement or under any other Loan DocumentNote, after withholding or deduction for or on account of any Taxes Taxes, will not be less than the amount provided for herein or in such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such LenderNote. The respective Borrower will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, Taxes is due pursuant to applicable law certified copies of tax receipts, or other evidence documents reasonably satisfactory to the respective LenderBank or Administrative Agent, evidencing such payment by such Borrower. Subject to the Borrowerexclusions in the second parenthetical clause of this Section 4.04(a), the respective Borrower agrees to indemnify and hold harmless each Bank, and reimburse such Bank upon its written request, for the amount of any Taxes so levied or imposed and paid by such Bank.
(b) Each Lender Bank that is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower agrees to provide deliver to the Borrower Company and the Administrative Agent on or prior to the Closing Effective Date, or in the case of a Lender Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 1.13 or 13.04 (unless the respective Lender Bank was already a Lender Bank hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Sectiontransfer), on the date of such assignment or transfer to such LenderBank, and from time to time thereafter if required by the Borrower or the Administrative Agent: (i) two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP Form 4224 or W-8IMY 1001 (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the paymentsuccessor forms) certifying to such Lender’s Bank's entitlement to a complete exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made by the Company under this AgreementAgreement and under any Note, or (ii) if the Bank is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any Note such certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8 (or any other Loan Document, along with any other appropriate documentation establishing successor form) certifying to such Bank's entitlement to a complete exemption or reduction (such as statements certifying qualification for exemption from United States withholding tax with respect to portfolio interest)payments of interest to be made by the Company under this Agreement and under any Note. Furthermore, each such Bank agrees to provide such other information to the Company and the Administrative Agent as may be reasonably necessary or appropriate for such Bank to avail itself of any benefit provided by an applicable bilateral income tax treaty with respect to any payment hereunder. In addition, each Lender Bank agrees that from time to time after the Closing Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower Company and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing 4224 or 1001, or Form W-8 and a Section 4.04(b)(ii) Certificate, as the case may be, and such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) other forms as may be required in order to confirm or establish the entitlement of such Lender Bank to a continued exemption from or reduction in United States withholding tax if with respect to payments by the Lender continues Company under this Agreement and any Note, or it shall immediately notify the Company and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Bank shall not be required to deliver any such Form or Certificate. Notwithstanding anything to the contrary contained in Section 4.04(a), but subject to Section 13.04(b) and the immediately succeeding sentence, (x) the Company shall be entitled, to the extent it is required to do so entitled. Each Lender that by law, to deduct or withhold Taxes, income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Bank which is not a United States Person person (as such term is defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes shall deliver to the Borrower and the Administrative Agent, on or prior extent that such Bank has not timely provided to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Company U.S. Internal Revenue Service Form W-9 Forms that establish a complete exemption from such deduction or withholding and (or successor, substitute or other appropriate form prescribed by y) the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower Company shall not be obligated pursuant to Section 3.03(a4.04(a) hereof to pay additional amounts on account gross-up payments to be made to a Bank in respect of Taxes, income or indemnify with respect to similar taxes imposed by the United States withholding taxes if (I) such Bank has not provided to the Company the complete and accurate Internal Revenue Service Forms or backup withholding taxes other information required to be provided to the Company pursuant to this Section 4.04(b) or (II) in the case of a payment to a Bank described in clause (ii) above, to the extent that such taxes arise solely due Forms do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under the contrary contained in the preceding sentence or elsewhere in this Section 3.03(b4.04 and except as set forth in Section 13.04(b). Except to the extent otherwise provided in this Agreement, the Borrower Company agrees to pay additional amounts and to indemnify each Lender Bank in the manner and to the extent set forth in Section 3.03(a4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any Taxes amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the date in which such Lender becomes a party to this Agreement hereof in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of income or similar Taxes.
(c) If any Lender becomes aware that it has finally a Bank is managed and irrevocably received controlled from or been granted a refund in respect incorporated under the laws of any Taxes as to which indemnification has been paid by jurisdiction other than the Borrower pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs United Kingdom and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay make Revolving Loans to a Subsidiary Borrower incorporated in the United Kingdom through a lending office located outside the United Kingdom (a "Non-U.K. Bank"), such refund Non-U.K. Bank agrees to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower file with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If with a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver copy to the Borrower Company and the Administrative Agent), to the extent that it is entitled to file, at the time expense of such Subsidiary Borrower within 20 days after the Effective Date, or times prescribed by law and at such time in the case of a Non-U.K. Bank that is an assignee or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent transferee of an interest under this Agreement pursuant to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.Section 1.13 or
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Net Payments. (a) Except as provided for in Section 3.03(b), all payments made by the Borrower Borrowers hereunder, under any Note or any other Loan Document Document, including all payments made by the Company pursuant to its Company Guaranty Obligations under Article X, will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (i) any tax imposed on or measured by the net income or net profits of a recipient and franchise taxes or alternative minimum taxes imposed on the recipient pursuant to the laws of the jurisdiction under which such recipient is organized or the jurisdiction in which the principal office or Applicable Lending Office of such recipient, as applicable, is located or any subdivision thereof or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure to comply with Section 3.03(b), if it is legally entitled to do so, (iv) in the case of a Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code), any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower Borrowers with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees assessments or other charges being referred to collectively as “Taxes”). Subject to Section 3.03(b), if any Taxes are so levied or imposed, the applicable Borrower agrees agree to pay such additional amounts (including additional amounts to compensate for withholding on amounts paid pursuant to this Section 3.03) as may be necessary so that every payment by it of all amounts due hereunder, under any Note or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the applicable Borrower will indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of any Taxes imposed on and paid by such Lender. The Borrower Borrowers will furnish to the Administrative Agent within 45 days after the date the payment of any Taxes, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the BorrowerBorrowers.
(b) Each Lender that is not a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the a Borrower agrees to provide to the Borrower Borrowers and the Administrative Agent on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower Borrowers or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP or W-8IMY (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made under this Agreement, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower Borrowers and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to the Borrower Borrowers and the Administrative Agent, on or prior to the Closing Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower Borrowers shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to United States withholding taxes or backup withholding taxes to the extent that such taxes arise solely due to a Lender’s failure to deliver forms that it was legally entitled to but failed to deliver under this Section 3.03(b). Except to the extent otherwise provided in this Agreement, the applicable Borrower agrees to pay additional amounts and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted or withheld by it as a result of any changes after the date in which such Lender becomes a party to this Agreement in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of Taxes.
(c) If any Lender becomes aware that it has finally and irrevocably received or been granted a refund in respect of any Taxes as to which indemnification has been paid by the Borrower Borrowers pursuant to this Section 3.03, it shall promptly remit such refund (including any interest received in respect thereof) to the relevant Borrower, net of all out-of-pocket costs and expenses to the such Borrower; provided, however, that the such Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential). Any such Lender shall use commercially reasonable efforts to provide the Borrower Borrowers with a copy of any notice of assessment from the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) under this Agreement may be subject to withholding tax under the FATCA, such Lender (or recipient) shall deliver to the Borrower Borrowers and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower Borrowers or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower Borrowers or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary of the Treasury of the United States of America or to determine the amount to deduct and withhold from such payment.
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Net Payments. (a) Except as provided for in Section 3.03(b), all All payments made by the Borrower hereunder, under any Note or any other Loan Document will this Agreement shall be made free without setoff or counterclaim and clear of, and without in such amounts as may be necessary in order that all such payments (after deduction or withholding for, for or on account of any present or future taxes, levies, imposts, duties, fees, assessments duties or other charges of whatever whatsoever nature now or hereafter imposed by any jurisdiction government or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding (iherein collectively called the "Taxes") other than any tax imposed Taxes on or measured by the net income income, net worth or net profits shareholders' capital of a recipient and franchise taxes Bank or alternative minimum taxes imposed on the recipient a Participant pursuant to the income tax laws of the jurisdiction under which where such recipient is organized Bank's principal or the jurisdiction in which the principal lending office or Applicable Lending Office of such recipient, as applicable, is located or where such Participant's principal or participating office is located) shall not be less than the amounts otherwise specified to be paid under this Agreement; provided that if any subdivision thereof Bank or therein, (ii) any branch profits tax imposed on any recipient by the United States or by the jurisdiction of the recipient’s organization principal office or Applicable Lending Office, (iii) any tax attributable to Lender’s failure Participant fails to comply with the applicable provisions of Section 3.03(b)10.06(g) hereof or paragraph (b) of this Section 2.11, if it as the case may be, then, all such payments to such Bank or to any Bank which has sold a participation pursuant to Section 10.06(b) hereof shall be net of any amounts the Company is legally required to withhold under applicable law. For a Bank to be entitled to do so, compensation pursuant to this Section 2.11 (ivi) in the case of a Lender that is not compensation for United States Federal income or withholding Taxes in respect of any Interest Period, such Bank must notify the Company within 30 days after the end of such Interest Period and (ii) in the case of compensation for any United States Tax other than a United States Person (as Federal income or withholding Tax in respect of any Interest Period, such term is defined in Section 7701(a)(30) of Bank must notify the Code)Company within 30 days after such Bank receives a written claim for such Tax from any government, any withholding tax that is in effect and would apply to amounts payable to such Lender at the time it becomes a party to this Agreement (political subdivision or designates a new Applicable Lending Office), except to the extent such Lender (or assignor) was entitled at the time of designation of a new Applicable Lending Office or assignment to receive additional amounts from the Borrower with respect to any withholding tax pursuant to this Section 3.03) or (v) any withholding taxes imposed pursuant to the FATCA and all interest, penalties or similar liabilities taxing authority with respect to such non-excluded taxes, levies imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees assessments or other charges being referred Interest Period. A certificate as to collectively as “Taxes”). Subject to Section 3.03(b), if any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts (including additional amounts payable to compensate for withholding on amounts paid pursuant to any Bank under this Section 3.03) as may 2.11 submitted to the Company by such Bank shall show in reasonable detail the amount payable and the calculations used to determine such amount and shall be necessary so that every payment by it conclusive and binding upon the parties hereto, in the absence of all amounts due hereunder, under any Note manifest error. With respect to each deduction or under any other Loan Document, after withholding or deduction for or on account of any Taxes will not be less than the amount such Lender would have received had no deduction, withholding or payment been required or made with respect to such Taxes. Subject to Section 3.03(b), the Borrower will indemnify Company shall promptly (and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent or such Lender upon its written request, for the amount of in any Taxes imposed on and paid by such Lender. The Borrower will event not later than 45 days thereafter) furnish to the Administrative Agent within 45 days after the date the payment of any Taxeseach Bank such certificates, or any withholding or deduction on account thereof, is due pursuant to applicable law certified copies of tax receipts, or other evidence satisfactory to the respective Lender, evidencing such payment by the Borrower.receipts and
(b) Each Lender Bank that is not a incorporated under the laws of the United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes and that is entitled to claim an exemption from or reduction in United States withholding tax with respect to a payment by the Borrower any State thereof agrees to provide to the Borrower and file with the Administrative Agent and the Company, in duplicate, (i) on or prior to before the Closing Datelater of (A) the Effective Date and (B) the date such Bank becomes a Bank under this Agreement and (ii) thereafter, or for each taxable year of such Bank (in the case of a Lender that is an assignee Form 4224) or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section), on the date for each third taxable year of such assignment or transfer to such Lender, and from time to time thereafter if required by the Borrower or the Administrative Agent: two accurate and complete original signed copies of Internal Revenue Service Forms W-8BEN, W-8ECI, W-8EXP or W-8IMY Bank (or successor, substitute or other appropriate forms and, in the case of Form W-8IMY, complete with accompanying Forms W-8BEN any other form) during which interest or other appropriate forms with respect to beneficial owners of the payment) certifying to such Lender’s entitlement to exemption from or a reduced rate of withholding of United States withholding tax with respect to payments to be made fees arising under this AgreementAgreement are received, any Note or any other Loan Document, along with any other appropriate documentation establishing such exemption or reduction (such unless not legally able to do so as statements certifying qualification for exemption with respect to portfolio interest). In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or result of a change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of the applicable Internal Revenue Service Form establishing such exemption or reduction and any related documentation (such as statements certifying qualification for exemption with respect to portfolio interest) as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax if the Lender continues to be so entitled. Each Lender that is a United States Person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes shall deliver to law enacted, or treaty promulgated, after the Borrower and date specified in the Administrative Agentpreceding clause (i), on or prior to the Closing Dateimmediately following due date of any payment by the Company hereunder (or at any other time as required under United States income tax law), a properly completed and executed copy of either Internal Revenue Service Form 4224 or in the case of a Lender that is an assignee Internal Revenue Service Form 1001 and Internal Revenue Service Form W-8 or transferee of an interest under this Agreement pursuant to Section 11.06 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section) two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor, substitute or other appropriate and any additional form prescribed by the Internal Revenue Service). No Lender shall be required by this Section 3.03(b) to deliver a form or certificate that it is not legally entitled to deliver. The Borrower shall not be obligated pursuant to Section 3.03(a) hereof to pay additional amounts on account of or indemnify with respect to necessary for claiming complete exemption from United States withholding taxes (or backup such other form as is required to claim complete exemption from United States withholding taxes taxes), if and as provided by the Code, regulations or other pronouncements of the United States Internal Revenue Service, and the Bank warrants to the extent Company that the form so filed will be true and complete; provided that such taxes arise solely due to a Lender’s Bank's failure to deliver forms that it was legally entitled to but failed to deliver complete and execute such Form 4224 or Form 1001, or Form W-8 or Form W-9, as the case may be, and any such additional form (or any successor form or forms) shall not relieve the Company of any of its obligations under this Section 3.03(b). Except to the extent Agreement, except as otherwise provided in this AgreementSection 2.11. In the event that the Company is required, or has been notified by the Borrower agrees relevant taxing authority that it will be required, to pay additional amounts either withhold or make payment of Taxes with respect to any payments to be made by the Company under this Agreement to any transferor Bank and indemnify each Lender in the manner and to the extent set forth in Section 3.03(a) in respect of any Taxes deducted such requirement or withheld by it notice arises as a result of any changes after the date sale of a participation by such transferor Bank pursuant to Section 10.06(b) hereof, such transferor Bank shall, upon request by the Company, accompanied by a certificate setting forth in reasonable detail the basis for such request, provide to the Company copies of all tax forms required to be provided to such transferor Bank pursuant to Section 10.06(g) hereof by the Participant which purchased such Lender becomes a party participation. The obligation of each transferor Bank to provide to the Company such tax forms shall survive the termination of this Agreement in any applicable lawor, treatyif earlier, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to termination of the deducting or withholding Revolving Credit Commitment of Taxessuch transferor Bank.
(c) If In the event that any Lender becomes aware Affected Bank shall have given notice that it has finally and irrevocably received or been granted a refund in respect of any Taxes as is entitled to which indemnification has been paid by the Borrower claim compensation pursuant to this Section 3.032.11, it shall promptly remit such refund the Company may at any time thereafter exercise any one or more of the following options: (including any interest received in respect thereofi) The Company may request one or more of the non-Affected Banks to the relevant Borrower, net take over all (but not part) of all out-of-pocket costs and expenses to the Borrower; provided, however, that the Borrower agrees to promptly return any such refund (plus interest) to such Lender in the event such Lender is required to repay such refund to the relevant taxing authority and, provided further, that nothing in this Section 3.03(c) shall require any Lender to make available its tax returns (each or any other information relating Affected Bank's then outstanding Loan(s) and to its taxes that it deems confidential)assume all (but not part) of each or any Affected Bank's Revolving Credit Commitment and obligations hereunder. Any such Lender If one or more Banks shall use commercially reasonable efforts so agree in writing with respect to provide an Affected Bank, (x) the Borrower with a copy Revolving Credit Commitment of any notice of assessment from each Assenting Bank and the relevant taxing authority (redacting any unrelated confidential information contained therein) requiring repayment obligations of such refund. Nothing contained herein shall impose an obligation on any Lender to apply for any such refund.
(d) If a payment made to a Lender (or any other recipient) Assenting Bank under this Agreement may shall be subject to withholding tax increased by its respective Allocable Share of the Revolving Credit Commitment and of the obligations of such Affected Bank under the FATCAthis Agreement, such Lender and (or recipienty) each Assenting Bank shall deliver make Loans to the Borrower and Company, according to such Assenting Bank's respective Allocable Share, in an aggregate principal amount equal to the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender (or recipient) (including their direct or indirect interest holders, as may be relevant) has complied with its obligations under the FATCA such that no withholdings obligations exist and such Lender (and its direct or indirect interest holders, if any) has entered into the required agreement with the Secretary outstanding principal amount of the Treasury Loan(s) of such Affected Bank, on a date mutually acceptable to the United States of America or to determine the amount to deduct and withhold from such payment.Assenting
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