Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error. (b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so. (c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date. (d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver. (e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c). (f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion. (g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 2 contracts
Sources: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)
Net Payments. (a) All payments made by or on account behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for, for or on account of any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld from any amounts payable by or deducted by on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent from such payments, (i) shall be entitled to the extent make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and if such Tax is on account of an Indemnified Tax or Other a Non-Excluded Tax, the sum payable shall be increased by then the applicable Credit Party as shall increase the amounts payable to the applicable Recipient to the extent necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01Section) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) applicable Recipient receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), (ii) as soon as practicable thereafter, the applicable withholding agent will make such deductions Borrower shall send to the Administrative Agent the original or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to a certified copy of a receipt issued by the relevant Governmental Authority. In addition, a copy of the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesreturn reporting such payment, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, Lenders for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Non-Excluded Taxes (including any Indemnified Taxes and Other Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), ) that are paid by the Agent or Lender or that are required to be withheld or deducted from a payment to the Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or 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. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any Other Taxes. The agreements in this Section 5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b) as if it were a Lender; provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment 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,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS 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 applicable payments under any Credit Document, IRS Form W-8BEN or IRS 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;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. 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 L-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower 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 Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies 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 Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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), such 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 (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or the Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, shall repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require the Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver 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 Credit Parties and to Lender from any successor Administrative Agent other source against any documentation provided by such Lender amount due to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (e).
(fe) If Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund assignment of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments maderights by, or additional amounts paidthe replacement of, by such Credit Party under Section 4.01(a) with respect to a Lender, the Indemnified Taxes termination of the Commitments and the repayment, satisfaction or Other Taxes giving rise to such refund), net discharge of all reasonable out-of-pocket expenses (including obligations under any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionDocument.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 2 contracts
Sources: Credit Agreement (ARKO Corp.), Credit Agreement (ARKO Corp.)
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Indemnified Taxes, except as ; provided that if the Borrower or any Guarantor or the Administrative Agent shall be required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Applicable Law to be withheld deduct or deducted by withhold any applicable withholding agent Indemnified Taxes from such payments, then (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Administrative Agent, the Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings, withholdings and (iii) the applicable withholding agent Borrower or such Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, Authority within the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority time allowed and in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copies copy of tax receipts evidencing such payment by the applicable Credit Party an original official receipt (or other evidence of acceptable to such Lender, acting reasonably) received by the Borrower or such Guarantor showing payment reasonably satisfactory to the Administrative Agent. thereof.
(b) The Credit Parties jointly Borrower shall timely pay and severally agree, to shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and reimburse hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Non-U.S. Lender that is entitled to an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. A Lender’s obligation under the prior sentence shall apply only if the Borrower or the Administrative Agent has made a request for such documentation. In addition, any Lender, if requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(e), 5.4(h) expiredand 5.4(i) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(e) Each Non-U.S. Lender with respect to any Revolving Credit Loan made to the applicable Borrowers and Borrower shall, to the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability extent it is legally entitled to do so.:
(ci) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or Agent, prior to the date on which it becomes a party the first payment to this Agreementthe Non-U.S. Lender is due hereunder, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to together with a certificate substantially in the extent a form of Exhibit E representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the beneficial owner Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, any interest payment received by such Non-U.S. Lender under this Agreement or any other Credit Document is not effectively connected with the conduct of a trade or business in the United States and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), (y) Internal Revenue Service Form W-8BEN, Form W-8-BEN-E or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding Tax on payments by the Borrower under this Agreement or (z) if a Non-U.S. Lender does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of pass through entity) Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law all necessary attachments (including the Treasury Regulationsforms described in clauses (x) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States personabove, as defined in Section 7701(a)(30required); and
(ii) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower. If in any such case any Change in Law has occurred prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, any such delivery would otherwise be required that renders any such form inapplicable or any successor form, certifying that would prevent such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's nonNon-U.S. status. A Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall deliver to promptly so advise the Company Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes or Tax (including an Other Taxes as to Tax) for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyBorrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate A Lender, the Administrative Agent or the Collateral Agent shall claim any Lender refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations to any Person Credit Party in connection with this clause (f) or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 5.4.
(g) For If the avoidance Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of doubtSection 2.12, for purposes of each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender5.
Appears in 2 contracts
Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.)
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any Credit other Loan Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by ; provided that if any applicable Requirements of Law. If any Taxes are Withholding Agent shall determine (in such Withholding Agent’s good faith discretion) that it is or may be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable Withholding Agent may make such deductions or withholdings as are determined by the applicable Withholding Agent in such Withholding Agent’s good faith discretion to be required by any applicable Requirement of Law, (ii) the applicable Withholding Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 4.012.17) have been madethe Administrative Agent, the Lender (Collateral Agent or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 2.17, (ii) the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower, the Administrative Agent or the applicable withholding agent will make such deductions or withholdingsLenders, and as the case may be.
(iiib) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after , or at the option of the Administrative Agent timely reimburse it for the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 (whether or not such Other Taxes were correctly or legally imposed or asserted by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of ten (10) Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.012.17), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested by information as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents other than as required below in pursuant to Section 4.01(c2.17(e)(i)(A)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative AgentB) or promptly notify (C)), shall not be required if in the Borrowers and 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 Administrative Agent in writing legal or commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of Section 2.17(d), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally eligible to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Lender becomes a party to Lender under this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form) (together with a certificate substantially in the form of Exhibit C D-1, Exhibit D-2, Exhibit D-3 or Exhibit D-4 hereto, as applicable (any a “Non-Bank Tax Certificate”), representing that such certificateNon-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a "U.S. Tax Compliance Certificate"“10 percent shareholder” (within the meaning of Section 881(c)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower as described in Section 881(c)(3)(C) of the Code) and two accurate and complete original signed copies the interest payments in question are not effectively connected with the conduct by such Lender of Internal Revenue Service a trade or business within the United States), (B) IRS Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, IRS Form W-8BEN-E, U.S. Tax Compliance Certificateas applicable, or Form W-9, Form W-8IMY, and/or any other required information W-8ECI (or any applicable successor form), in each case properly completed and duly executed by such Non-U.S. Lender and, to the extent applicable, claiming complete exemption from, or other reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (C) IRS Form W-8IMY (or any applicable successor form) from each beneficial owner and all necessary attachments (including the forms described in clauses (A) and (B) above; provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect of the partners are is claiming the portfolio interest exemptiontreatment, the U.S. Non-Bank Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such direct or indirect partner(s)); partners) or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made; provided that such other form and supplementary documentation described in this clause (D) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender under to any material unreimbursed cost or expense or would materially prejudice the Credit Documentslegal or commercial position of such Lender; and and
(yii) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) promptly after such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a material change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent or promptly notify the Borrower and the Administrative Agent in writing of such Non-U.S. ▇▇▇▇▇▇’s inability to do so. Each Person that shall become a Participant pursuant to Section 9.06 or a Lender pursuant to Section 9.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 2.17(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, to the extent it is legally eligible to do so, each Agent shall deliver to the Borrower (x)(I) prior to the date on which it the first payment by the Borrower is due hereunder or (II) prior to the first date on or after the date on which such Agent becomes a party successor Agent pursuant to Section 8.09 on which payment by the Borrower is due hereunder, as applicable, two copies of a properly completed and executed IRS Form W-9 certifying its exemption from U.S. Federal backup withholding or a properly completed and executed applicable IRS Form W-8 certifying its non-U.S. status and its entitlement to any applicable treaty benefits, and (y) on or before the date on which any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of such documentation.
(f) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has received a refund of an Indemnified Tax or Other Tax for which it has been indemnified pursuant to this AgreementSection 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all reasonable out-of-pocket expenses (including Taxes) of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no worse net after-Tax position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the Borrower or such Guarantor, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). None of the Lenders, the Administrative Agent or the Collateral Agent shall be obliged to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Party in connection with this clause (f) or any other provision of this Section 2.17.
(g) [Reserved].
(h) Without limiting the generality of Section 2.17(d), each U.S. Lender shall deliver to the Borrower and the Administrative Agent two accurate and complete original signed copies of Internal Revenue Service an IRS Form W-9, W-9 (or any substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such U.S. Lender is exempt from United States federal backup withholding (i) on or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver prior to the Company Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the U.S. ▇▇▇▇▇▇’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender or any Agent under this Agreement or any other Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Agent 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), such Lender or such Agent 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 Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 2.17(i), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Virgin Orbit Holdings, Inc.), Term Loan Credit Agreement (Virgin Orbit Holdings, Inc.)
Net Payments. (a) All payments made by or on account behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for, for or on account of any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld from any amounts payable by or deducted by on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent from such payments, (i) shall be entitled to the extent make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and if such Tax is on account of an Indemnified Tax or Other a Non-Excluded Tax, then the sum Borrower shall increase the amounts payable shall be increased by to the applicable Credit Party as Recipient to the extent necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01Section) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) applicable Recipient receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), (ii) as soon as practicable thereafter, the applicable withholding agent will make such deductions Borrower shall send to the Administrative Agent the original or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to a certified copy of a receipt issued by the relevant Governmental Authority. In addition, a copy of the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesreturn reporting such payment, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly Borrower shall indemnify the Agents and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, Lenders for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Non-Excluded Taxes (including any Indemnified Taxes and Other Non- Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), ) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or 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. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any Other Taxes. The agreements in this Section 5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment 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,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS 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 applicable payments under any Credit Document, IRS Form W-8BEN or IRS 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;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. 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 L-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” within the meaning of Section 957 of the Code related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower 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 Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower 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 Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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), such 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 (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or any Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non- Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver 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 Credit Parties and to Lender from any successor Administrative Agent other source against any documentation provided by such Lender amount due to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (d).
(fe) If Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund assignment of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments maderights by, or additional amounts paidthe replacement of, by such Credit Party under Section 4.01(a) with respect to a Lender, the Indemnified Taxes termination of the Commitments and the repayment, satisfaction or Other Taxes giving rise to such refund), net discharge of all reasonable out-of-pocket expenses (including obligations under any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionDocument.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 2 contracts
Sources: Credit Agreement (Tiga Acquisition Corp.), Credit Agreement (Tiga Acquisition Corp.)
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Indemnified Taxes or Other Taxes, except as required by applicable Requirements of Law. If ; provided that if the Borrower or any Taxes are Guarantor or the Administrative Agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings as are reasonably determined by the Borrower, such Guarantor or the Administrative Agent to be required by any applicable Requirement of Law, (ii) the Borrower, such Guarantor or the Administrative Agent, as applicable, shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after making all required deductions or and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.015.4) have been made, the Lender (or the Administrative Agent if or any Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copies copy of tax receipts an official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower or such Guarantor showing payment thereof. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent. , as the case may be.
(b) The Credit Parties jointly Borrower shall timely pay and severally agree, to shall indemnify and hold harmless the Administrative Agent and each Lender, Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and reimburse hold harmless the Administrative Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender or the Administrative Agent (as applicable) on its own behalf or Lender (or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested by information as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than the documentation set forth in Section 4.01(c5.4(e), (h) and (i)) expiredshall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of the foregoing, each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally entitled to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or Agent, prior to the date on which it becomes a party the first payment to this Agreementthe Non-U.S. Lender is due hereunder, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (or any applicable successor form) (together with a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower (within the meaning of Section 864(d)(4) of the Code), (B) Internal Revenue Service Form W-8BEN-E or Form W-8ECI (or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement, (iiiC) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or any applicable successor form) of and all necessary attachments (including the Lenderforms described in clauses (A) and (B) above, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable formas required) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, U.S. in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and from time to time thereafter if reasonably requested by the Borrower and the Administrative Agent; unless in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it and such Non-U.S. Lender promptly so advises the Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 14.6 or a Lender pursuant to Section 14.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(f) If any Lender or the Administrative Agent, as applicable, determines, in its sole discretion, that it had received and retained a refund of an Indemnified Tax or Other Tax for which a payment has been made by the Borrower or any Guarantor pursuant to this Agreement or any other Credit Document, which refund in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by the Borrower or any Guarantor, then such Lender or the Administrative Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all out-of-pocket expenses of such Lender or the Administrative Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as such Lender or the Administrative Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the Borrower or such Guarantor, upon the request of such Lender or the Administrative Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any payments penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender under or the Administrative Agent in the event such Lender or the Administrative Agent is required to repay such refund to such Governmental Authority. In such event, such Lender or the Administrative Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender or the Administrative Agent may delete any information therein that it deems confidential). Each Lender and the Administrative Agent shall claim any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. No Lender nor the Administrative Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Documents; Party in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or the Administrative Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and the Administrative Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 5.4(g). Nothing in this Section 5.4(g) shall obligate any Lender or the Administrative Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(yh) The Administrative Agent and each Lender that is a United States person, as defined in person under Section 7701(a)(30) of the Code, Code shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, Agent two accurate and complete original signed copies of Internal Revenue Service Form W-9, Forms W-9 (or any substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender Person is exempt from United States federal backup withholding (i) on or prior to the Closing Date (yor on or prior to the date it becomes a party to this Agreement), (ii) an after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and (iii) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender or the Administrative Agent under this Agreement or any other Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Person were to fail to comply with the applicable Internal Revenue Service Form W-8 certifying reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender's non-U.S. status. A Lender Person shall deliver to the Company Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether that such Lender Person has or has not complied with such Lender's Person’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.4(i), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Junior Secured Debtor in Possession Credit Agreement (California Resources Corp)
Net Payments. (a) All Except as provided in this Section 3.15(a), all payments made by or on account behalf of any Credit Party the Borrower hereunder and under any Credit Loan Document shall will 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 TaxesTaxes with respect to such payments, except as unless required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from deducted, the Borrower or Guarantor, if applicable, agrees to pay the full amount of such payments, (i) Taxes to the extent relevant Governmental Authority and, if such Tax is an Indemnified Tax, such additional amounts to the recipient as may be necessary so that every payment of all amounts due under this Agreement or under any Loan Document will not be less than the amount provided for herein or in such Loan Document after withholding or deduction for or withholding is on account of an such Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings Taxes (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law3.15(a)). As soon as practicable after any payment of Taxes, but in no event later than 45 days after the date of the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit PartiesTaxes, the Credit Parties Borrower or Guarantors, if applicable, will furnish to the Administrative Agent certified copies of tax receipts the receipt issued by the relevant Governmental Authority evidencing such payment by the applicable Credit Party such Borrower or other evidence of such payment reasonably satisfactory to the Administrative AgentGuarantor. The Credit Parties jointly and severally agreeBorrower or Guarantors, if applicable, agree to indemnify and hold harmless the Administrative Agent and each Lender, and to reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, such Person for the full amount of any Indemnified Taxes so levied or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes imposed (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.013.15(a), ) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental AuthorityAuthority and paid by such Person, within 10 days after written demand therefor. Notwithstanding the foregoing, Borrower and Guarantors shall not be required to indemnify the Administrative Agent or any Lender pursuant to this Section 3.15(a) for any Tax for which the Tax Indemnitee has received written notice from a taxing authority or has otherwise had knowledge of for more than 180 days prior to the date that such Lender or the Administrative Agent notifies the Borrower of the event that gives rise to such claim. A certificate as to the amount of such payment or liability prepared and the reasons therefor in good faith and reasonable detail (provided that such Lender shall not be required to disclose any price sensitive information, any confidential information or any information to the extent prohibited by law or regulation) delivered to the Borrower by a Lender (with a copy to the Administrative Agent or Lender (Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender) , shall be conclusive absent manifest error. The Borrower or Guarantor, if applicable, shall 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.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoingSection 3.15(c), (I) (x) each Lender and the Administrative Agent that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall for U.S. federal income tax purposes, agrees to deliver to the U.S. Parent Borrower and the Administrative Agent (or in the case of the Administrative Agent, to the Borrower) on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate accurate, complete and executed originals of Internal Revenue Service Form W 9. Each Lender and the Administrative Agent that 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 (each, a “Foreign Lender”) agrees to deliver to the Borrower and the Administrative Agent (or in the case of the Administrative Agent, to deliver to the Borrower) on or prior to the date it becomes a party to this Agreement, whichever of the following is applicable:
(i) two accurate, complete original signed and executed originals of Internal Revenue Service Form W 8-ECI, or any subsequent versions thereof or successors thereto;
(ii) two accurate, complete and executed originals of Internal Revenue Service Form W 8-BEN or Form W8-BEN-E or any subsequent versions thereof or successors thereto, certifying to such Person’s entitlement as of such date to a complete exemption from, or reduction of, United States withholding tax with respect to payments to be made under this Agreement and under any Note;
(iii) two accurate, complete and executed originals of Internal Revenue Service Form W 8IMY, or any subsequent versions thereof of successors thereto, and all required supporting documentation (including Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN (or W-8BEN-E), Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner); or
(iv) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code: (A) two executed certificates providing that such Foreign Lender is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code; (2) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code; or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, which certificates shall be substantially in the form of Exhibit I (any such certificate, a “Non-Bank Certificate”) and (B) two accurate, complete and executed originals of Internal Revenue Service Form W 8BEN or Form W-8BENE (with respect to the portfolio interest exemption) (or any subsequent versions thereof or successors thereto) 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, the Administrative Agent and each Lender agrees that from time to time after the Closing Date, when a change in circumstances renders the previous certification inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate, complete and executed copies of Internal Revenue Service Form W-9W-8ECI, Form W-8IMY, Form W-8BEN or Form W-8BEN-E (with respect to the benefits of any income tax treaty), Form W-8BEN or Form W-8BEN-E (with respect to the portfolio interest exemption) and a Non-Bank Certificate, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, as the case may be (or any successor formsubsequent versions thereof or successors thereto), certifying that in order to confirm or establish its continued entitlement to a complete exemption from, or reduction of, United States withholding tax or backup withholding with respect to payments under this Agreement and any Note, or it shall promptly notify the Borrower and the Administrative Agent (if applicable) of its legal inability to deliver any such form or certificate.
(c) If any Lender or the Administrative Agent is entitled to an exemption from or reduction in withholding Tax with respect to payments under this Agreement and any Term Note, then such Lender and the Administrative Agent agree, to the extent it is exempt from United States federal backup legally entitled, pursuant to the applicable Requirement of Law in respect of Taxes, to do so, to deliver to the Borrower and the Administrative Agent upon request such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding.
(yd) an If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable Internal Revenue Service Form W-8 certifying reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, FATCA and to determine whether that such Lender has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA and or to determine, if necessary, determine the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 3.15(d), "FATCA" FATCA shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes If the Administrative Agent Borrower or any Guarantor has paid an additional amount in respect of Indemnified Taxes to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determinespursuant to Section 3.15(a), paid any Other Taxes on behalf any such recipient pursuant to Section 3.15(a) or indemnified any such recipient for Indemnified Taxes pursuant to Section 3.15(a) hereof, then such recipient shall, at the expense of Borrower, cooperate in good faith with the Borrower in filing for and seeking any refunds of such Taxes. If the Borrower or Guarantor pays any additional amount or makes any indemnity payment under this Section 3.15 to a Lender or the Administrative Agent and such Lender or the Administrative Agent determines in its sole discretion exercised in good faith, faith that it has received a any refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties Borrower or with respect to which any Guarantor (a Credit Party has paid additional amounts pursuant to Section 4.01(a“Refund”), it such Lender or the Administrative Agent shall pay to the relevant Credit Party an amount equal to Borrower or Guarantor, as the case may be, such refund Refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party made under this Section 4.01(a) 3.15 with respect to the Indemnified Taxes or and Other Taxes giving rise to such refund), Refund) net of all reasonable out-of-out of pocket expenses (including any Taxes) in respect of the Administrative Agent or such Lender, as the case may be, Refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refundAuthority); provided that . Notwithstanding the relevant Credit Partyprior two sentences, upon the request of (i) any Lender or the Administrative Agent or such Lendermay determine, agrees in its sole discretion exercised in good faith consistent with its policies, whether to repay the amount paid over to such Credit Party seek a Refund; (plus ii) any Taxes, costs, penalties, interest or other charges that are imposed by the relevant Governmental Authority) to on a Lender or the Administrative Agent as a result of a disallowance or reduction of any Refund with respect to which such Lender in the event or the Administrative Agent has made a payment to the Borrower or the Guarantor pursuant to this Section 3.15(e) (and any interest or penalties imposed thereon) shall be treated as a Tax for which the Borrower or a Guarantor, as the case may be, is obligated to indemnify such Lender is required or the Administrative Agent pursuant to repay such refund to such Governmental Authority. Nothing this Section 3.15 without any exclusions or defenses; (ii) nothing in this Section 4.01(f3.15(e) shall be construed to obligate require any Lender or the Administrative Agent or any Lender to disclose or make available any confidential information to the Borrower or the Guarantor (including, without limitation, its Tax returns tax returns); (iii) no Lender or the Administrative Agent shall be required to pay any other information regarding its Tax affairs or computations amounts pursuant to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.013.15(e) at any time which an Event of Default exists (provided that such amounts shall be credited against amounts otherwise owed under this Agreement by the Borrower or a Guarantor); and (iv) notwithstanding anything to the contrary in this Section 3.15(e), in no event will the term "Lender" shall include Lender or Administrative Agent be required to pay any Issuing Bank and any Swingline Lenderamount to the Borrower or Guarantor the payment of which would place the Lender or Administrative Agent in a less favorable net after-Tax position than the Lender or Administrative Agent would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.
Appears in 1 contract
Sources: Abl Credit and Guarantee Agreement (Janus International Group, Inc.)
Net Payments. (a) All payments made by or on account any Borrower of any Credit Party under any Credit Document principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of, of and without deduction for any present or withholding forfuture income, any stamp or other Taxes, except as required fees, duties, withholdings or other charges of any nature whatsoever imposed by applicable Requirements of Lawany taxing authority, other than Taxes imposed on or measured by any Bank's net income or receipts with respect to payments received hereunder (such non-excluded items being called "Charges"). If In the event that any Taxes are required by applicable Requirements of Law withholding or deduction from any payment to be withheld or deducted made by any Borrower hereunder is required in respect of any Charges pursuant to any applicable withholding agent law, rule or regulation, then such Borrower will, upon notice from such payments, the Bank so affected:
(i) pay directly to the extent such deduction relevant authority the full amount required to be so withheld or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings deducted;
(including deductions or withholdings applicable ii) promptly forward to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if an official receipt or other documentation satisfactory to the Administrative Agent receives the evidencing such payment for its own accountto such authority;
(iii) receives an amount equal pay to the sum it Administrative Agent for the account of the Banks such additional amount or amounts as are necessary to ensure that the net amount actually received by each Bank will equal the full amount such Bank would have received had no such deductions withholding or withholdings deduction been made, required; and
(iiiv) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay if any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted Bank receives a refund in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties any Borrower or with respect to which a Credit Party any Borrower (or any Person acting on behalf of such Borrower) has paid additional amounts pursuant to this Section 4.01(a)4.5, it shall pay to the relevant Credit Party an amount equal to promptly repay such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party Borrower (or such Person acting on behalf of such Borrower) under this Section 4.01(a) 4.5 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-of- pocket expenses (including any Taxes) of such Bank or the Administrative Agent or such LenderAgent, as the case may be; provided, and without interest (other than any interest paid by the relevant Governmental Authority with respect to that such refund); provided that the relevant Credit PartyBorrower, upon the request of such Bank or the Administrative Agent or such LenderAgent, agrees to repay the amount paid over to return such Credit Party refund (plus together with any penalties, interest or other charges imposed by due in connection therewith to the relevant appropriate taxing authority or other Governmental Authority) to such Bank or the Administrative Agent or such Lender in the event such Bank or the Administrative Agent or such Lender is required to repay pay or to return such refund to such the relevant taxing authority or other Governmental Authority. Nothing .
(b) Each Bank that is organized under the laws of a jurisdiction other than the United States shall, prior to the due date of any payments under the Loans, execute and deliver to the Borrowers, on or about the first scheduled payment date in each calendar year, a United States Internal Revenue Service Form W-BEN, Form W-ECI or Form W- 8IMY, as may be applicable (or any successor form), appropriately completed.
(c) Notwithstanding anything to the contrary in this Section 4.01(f4, each Borrower shall not be required to compensate any Bank for Charges pursuant to Section 4(a) to the extent such Bank's compliance with Section 4(b) at the time such Bank becomes a party to this Agreement fails to establish a complete exemption for such Bank from such Charges or to the extent such failure to establish a complete exemption from such Charges thereafter is attributable to the action or inaction of such Bank.
(d) Notwithstanding anything to the contrary contained in this Section 4 to the extent any notice required by Section 4(a) is given by any Bank to any Borrower more than 90 days after such Bank has knowledge of the occurrence of the event giving rise to such Charges, such Bank shall not be construed entitled to obligate compensation under such Section 4(a) for any such Charges incurred or accruing prior to the Administrative Agent giving of such notice to such Borrower.
(e) Each Bank agrees that, upon the occurrence of any event giving rise to the operation of Section 4(a) with respect to such Bank it will, if requested by any Borrower, use reasonable efforts (subject to overall policy considerations of such Bank) to take any actions available to it (including the designation of another Lending Office for any Loans affected by such event) with the object of avoiding the consequences of such event; provided that such designation is made on terms that in the reasonable judgment of such Bank cause such Bank and its Lending Office to suffer no economic, legal or regulatory disadvantages.
(f) Without prejudice to the survival of any Lender to disclose its Tax returns other agreement of the Borrowers hereunder or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs document, the agreements of the Borrowers contained in any manner other than as it determines in its sole discretion.
(g) For this Section 4.5 shall survive satisfaction of the avoidance of doubt, for purposes Liabilities and termination of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline LenderAgreement.
Appears in 1 contract
Sources: Guaranty (Conseco Inc)
Net Payments. (a) All Unless required by a Requirement of Tax Law (as determined in good faith by the Administrative Agent or other applicable withholding agent), all payments made by or on account behalf of the Borrowers or any other Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any In the event that an applicable withholding agent is required to deduct or withhold any Indemnified Taxes from such payments, or in respect of any payment hereunder or under any other Credit Document (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased as determined in good faith by the applicable Credit Party as necessary so that after all required deductions or withholdings withholding agent), then:
(including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (iii) the applicable withholding agent will make such deductions shall deduct or withholdings, and withhold the full amount required to be so withheld or deducted;
(iiiii) the applicable withholding agent shall timely pay the full amount such withheld or deducted or withheld amounts directly to the relevant Governmental Authority in accordance with the applicable Requirement of Tax Law;
(iii) if a Credit Party is the applicable withholding agent, such Credit Party will promptly forward to the Administrative Agent an official receipt or other documentation satisfactory to the Administrative Agent evidencing such payment to such Governmental Authority. In addition, ; and
(iv) the relevant Credit Parties Party will pay to the Administrative Agent for the account of each affected Lender such additional amount or amounts as are necessary to ensure that the net amount actually received by each such Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
(b) The Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Tax Law. As soon as practicable after the payment of , other than any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesthat are Other Connection Taxes arising as a result of a Lender’s voluntary assignment or transfer of, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing or participation in, such payment by the applicable Credit Party Lender’s right’s or other evidence of such payment reasonably satisfactory to the Administrative Agent. obligations hereunder (“Other Connection Assignment Taxes”).
(c) The Credit Parties Borrowers shall, jointly and severally agreeseverally, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 20 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01)5.4) and Other Taxes paid or payable by the Administrative Agent or such Lender, as the case may be, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such any Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrowers by a Lender (with a copy to the Administrative Agent or Lender (Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender) , shall be conclusive absent manifest error.
(b1) Any Lender that is entitled to an exemption from from, or reduction of of, any applicable withholding Tax tax with respect to any payments made under any Credit Document shall deliver to the applicable Borrowers RailAmerica and the Administrative Agent, at the any time or times reasonably requested by the Borrowers RailAmerica or the Administrative Agent, such properly completed and executed documentation reasonably requested by RailAmerica or the Borrowers Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by RailAmerica or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers RailAmerica or the Administrative Agent as will enable the Borrowers RailAmerica or the Administrative Agent to determine whether or not such Lender is subject to source withholding or backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required other than such documentation set forth below in the following subparagraph (2) of this Section 4.01(c5.4(d)) expiredshall not be required if in the Lender’s 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. Upon the reasonable request of RailAmerica or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 5.4(d). If any form or certification previously delivered pursuant to this Section 5.4(d) expires or becomes obsolete or inaccurate in any respectrespect with respect to a Lender, deliver such Lender shall promptly to the applicable Borrowers (and the Administrative Agent updated in any event within 10 days after such expiration, obsolescence or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agentinaccuracy) or promptly notify the Borrowers RailAmerica and the Administrative Agent in writing of its inability such expiration, obsolescence or inaccuracy and update the form or certification if it is legally able to do so.
(c2) Without limiting the generality of the foregoing, (I) (x) each Non-U.S. Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver shall, to the U.S. Parent Borrower and the Administrative Agent on or extent it is legally able to do so:
(i) prior to the date on which it a Lender becomes a party to Lender under this Agreement, (i) deliver to RailAmerica and the Administrative Agent two accurate and complete original signed copies of either (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ” Internal Revenue Service Form W-8BEN or any applicable successor form (together with a certificate substantially in the form of Exhibit C ▇-▇, ▇-▇, ▇-▇ ▇▇ ▇-▇, as applicable, representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (any within the meaning of Section 871(h)(3)(B) of the Code) of RailAmerica, is not a controlled foreign corporation related to the Borrowers (within the meaning of Section 864(d)(4) of the Code) and that no interest payments in connection with the Credit Documents are effectively connected with such certificate, Non-U.S. Lender’s conduct of a "U.S. trade or business (a “U.S. Tax Compliance Certificate"”)), (y) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (Form W-8ECI or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by any Borrower under any Credit Document or (iiiz) to in the extent case of a Non-U.S. Lender that is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or participating Lender granting a participating Lendertypical participation), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the LenderW-8IMY, accompanied by a Form W-8ECI, Form W-8BEN, Form W-8BEN-E, a U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, W-9 and/or any other required information (or successor or other applicable form) certification documents from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (owner, as applicable; provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), ) and one or more direct or indirect partners beneficial owners of such Non-U.S. Lender are claiming the portfolio interest exemption, the such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)beneficial owner(s); or and
(ivii) deliver to RailAmerica and the Administrative Agent two accurate and complete original signed further copies of any other such form prescribed or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete, and after the occurrence of any event requiring a change in the most recent form previously delivered by applicable U.S. federal income tax law it to RailAmerica and the Administrative Agent.
(including the Treasury Regulationse) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Each Lender that is a United States person, as defined in U.S. person within the meaning of Section 7701(a)(30) of the Code, Code shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company RailAmerica and the Administrative Agent on or prior to the date on which it such Lender becomes a party to Lender under this Agreement (and from time to time thereafter as prescribed by applicable law, on or before the date that any such form or certification expires or becomes obsolete, and after the occurrence of any event involving the Lender requiring a change in the most recent form previously delivered by it or upon the request of RailAmerica or the Administrative Agent) two accurate duly executed and complete original signed properly completed copies of either (x) Internal Revenue Service Form W-9, W-9 or any applicable successor form, form certifying that it is not subject to backup withholding.
(f) 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 is exempt from United States federal backup withholding were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Administrative Agent and the Administrative AgentBorrowers, at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Administrative Agent or the Administrative AgentBorrowers, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Agent or the Administrative Agent Borrowers as may be necessary for the Borrowers Administrative Agent and the Administrative Agent Borrowers to comply with their respective obligations (including any applicable reporting requirements) under FATCA, to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and to determine, if necessary, determine the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentencepayment, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Dateif any.
(dg) Notwithstanding If the Borrowers determine in good faith that a reasonable basis exists for contesting any other provision of Indemnified Taxes for which indemnification has been made hereunder, the relevant Lender or the Administrative Agent, as applicable, shall use reasonable efforts to cooperate with the Borrowers in challenging such taxes at the Borrowers’ expense if so requested by the Borrowers in writing; provided that nothing in this Section 4.01, a Lender 5.4(g) shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If obligate the Administrative Agent or any Lender determinesto take any action that, in its sole discretion exercised in good faithreasonable judgment, that it has received would be materially disadvantageous to such person. If any Lender or the Administrative Agent, as applicable, receives a refund of any an Indemnified Taxes or Other Taxes as to Tax for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrowers pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal to sole good faith judgment of such refund (but only to the extent of indemnity payments made, Lender or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such LenderAgent, as the case may be, and is attributable to such payment made by such Borrowers, then the Lender or the Administrative Agent, as the case may be, shall reimburse the Borrowers for such amount (without interest (other than any interest paid received by the relevant Governmental Authority with respect to such refund)) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse net after-tax position than it would have been in if the Indemnified Taxes giving rise to such refund had not been imposed in the first instance; provided that the relevant Credit PartyBorrowers, upon the request of the Administrative Agent or such Lender, agrees agree to repay the amount paid over to such Credit Party the Borrowers (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate Neither a Lender nor the Administrative Agent or any Lender shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations to the Borrowers in connection with this paragraph (g) or any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 5.4.
(gh) For the avoidance The agreements of doubt, for purposes of any Credit Party in this Section 4.01, 5.4 shall survive the term "Lender" shall include any Issuing Bank termination of the Credit Documents and any Swingline Lenderthe payment of the Loans and all other amounts payable hereunder.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other (including any Indemnified Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as will enable the Borrowers Lead Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Lead Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent) or promptly notify the Borrowers Lead Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Lead 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 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN (or successor form) or Form W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.successor
Appears in 1 contract
Net Payments. (a) All (a) Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Indemnified Taxes, except as required by applicable Requirements of Law. If ; provided that if the Borrower any Taxes are Guarantor or the Administrative Agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Indemnified Taxes from such payments, then (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.015.4) have been madethe applicable Agent or Lender, as the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the Borrower, such Guarantor or the Administrative Agent, as applicable withholding agent will shall make such deductions or withholdings, withholdings and (iii) the Borrower, such Guarantor or the Administrative Agent, as applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, Authority within the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority time allowed and in accordance with applicable Requirements of Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or any Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or such Guarantor shall send to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party for its own account or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case account of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest a certified copy of an original official receipt (or other than any interest paid evidence acceptable to such Lender or Agent, acting reasonably) received by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent Borrower or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionGuarantor showing payment thereof.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement (First Data Corp)
Net Payments. (a) All Any and all payments made by or on account behalf of any Credit Party under this Agreement or any Credit other Loan Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by ; provided that if any Credit Party or the Administrative Agent or any other applicable Requirements of Law. If any Taxes are withholding agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax or Other TaxTaxes, the sum payable shall be increased by the applicable Credit Party shall be increased as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 4.012.14) have been madethe Administrative Agent, the Lender (Collateral Trustee or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. After any payment of Taxes by any Credit Party as provided in this Section 2.14, the Borrowers shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by law to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(iib) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent The Borrowers shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after , or at the payment option of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing timely reimburse it for, any Other Taxes (whether or not such payment Other Taxes were correctly or legally imposed or asserted by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrowers shall indemnify and hold harmless the Administrative Agent Agent, the Collateral Trustee and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent Agent, the Collateral Trustee or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.012.14), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrowers by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent or Lender the Collateral Trustee (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) , shall be conclusive absent manifest error.
(bd) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Loan Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying Agent as will permit such payments to any entitlement of such Lender to an exemption from, be made without withholding or at a reduced rate of, withholding Taxof withholding. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in paragraphs (d)(i), (ii) and (iv) of this Section 4.01(c2.14(d)) expiredshall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do so.
(c) such Lender. Without limiting the generality of the foregoing, :
(Ii) (x) each any Lender that is not a “United States person (person” as such term is defined in by Section 7701(a)(30) of the Code) Code shall deliver to the U.S. Parent Borrower Borrowers and the Administrative Agent on or prior to about the date on which it such Lender becomes a party Lender under this Agreement (and from time to this Agreementtime thereafter upon the reasonable request of the Borrower or the Administrative Agent), (i) two accurate and complete original signed executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(ii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about 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 Borrowers or the Administrative Agent), whichever of the following is applicable:
(A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) in the case of a Foreign Lender claiming eligibility for the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS 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 applicable payments under any Loan Document, IRS Form W-8BEN or IRS 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;
(B) Internal Revenue Service executed copies of IRS Form W-8ECI W-8ECI;
(or successor form); (iiC) in the case of a Foreign Lender claiming the benefits of the exemption from U.S. federal withholding Tax for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest," Code, (x) a certificate substantially in the form of Exhibit C (any D-1 to the effect that such certificateForeign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a "“10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate"”) and two accurate and complete original signed (y) executed copies of Internal Revenue Service IRS Form W-8BEN or IRS Form W-8BEN-E E; or
(or successor form); (iiiD) to the extent a Foreign Lender is not the beneficial owner (for exampleowner, where the Lender is a partnership or a participating Lender), two accurate and complete original signed executed copies of Internal Revenue Service IRS Form W-8IMY (or successor form) of the LenderW-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance CertificateCertificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) certification documents from each beneficial owner owner, as applicable; provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Foreign Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, the such Foreign Lender may provide a U.S. Tax Compliance Certificate may be provided by such Lender substantially in the form of Exhibit D-4 on behalf of each such direct or and indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.partner;
Appears in 1 contract
Sources: Term Loan and Guaranty Agreement (Par Pacific Holdings, Inc.)
Net Payments. The provisions below shall not apply with respect to any payments in connection with any Loan or other Credit Extension to the Foreign Borrowers.
(a) All Any and all payments made by or on account behalf of the Parent Borrower or any Credit Party U.S. Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as ; provided that if the Parent Borrower or any U.S. Guarantor or the Administrative Agent shall be required by Applicable Law (as determined in the good faith discretion of an applicable Requirements of Law. If withholding agent) to deduct or withhold any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then (i) the Parent Borrower or such U.S. Guarantor or the Administrative Agent shall make such deductions or withholdings and (ii) the Parent Borrower or such U.S. Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the extent relevant Governmental Authority within the time allowed and in accordance with Applicable Law. If such deduction or withholding a Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Parent Borrower or any U.S. Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Administrative Agent, the Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes are payable by the Parent Borrower or such U.S. Guarantor, as promptly as practicable thereafter, the Parent Borrower or the U.S. Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (iior other evidence acceptable to such Lender, acting reasonably) received by the applicable withholding agent will make Parent Borrower or such deductions or withholdings, and U.S. Guarantor showing payment thereof.
(iiib) the applicable withholding agent The Parent Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In additionAuthority Other Taxes in accordance with Applicable Law, or at the Credit Parties shall option of the Administrative Agent, timely pay reimburse it for the payment of any Other Taxes that are paid by the Administrative Agent to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(c) The Credit Parties jointly and severally agree, to Parent Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Parent Borrower or such Lender any U.S. Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) payable or paid by such Agent or Lender or required to be withheld or deducted from a payment to such Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or Other legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Parent Borrower by a Lender (with a copy to the Administrative Agent), the Administrative Agent or the Collateral Agent (as applicable) 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 Indemnified Taxes attributable to such Lender (but only to the extent that the Parent Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Parent Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.6 relating to the maintenance of a 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 this Agreement or any Credit Document, and any reasonable expenses arising therefrom or with respect thereof, 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 prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) 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 this Agreement or 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 paragraph (d).
(be) Any Non-U.S. Lender that is entitled to claiming a basis for an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Parent Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Parent Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent, such properly completed and executed documentation reasonably prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding or as will permit the Parent Borrower or the Administrative Agent to determine the withholding or deduction required to be made. In addition, any Lender, if requested by the Borrowers Parent Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as will enable the Borrowers Parent Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(f), 5.4(i) expiredand 5.4(j) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(cf) Without limiting the generality of Section 5.4(e), each Non-U.S. Lender with respect to any amounts payable hereunder or under any other Credit Document shall, to the foregoing, extent it is legally entitled to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Non-U.S. Lender becomes a party Lender under this Agreement (and from time to this Agreementtime thereafter upon the reasonable request of the Parent Borrower or the Administrative Agent), (i) two accurate and complete original signed executed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit J-1 representing that such Non-U.S. Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Parent Borrower, any interest payment received by such Non-U.S. Lender under this Agreement or successor formany other Credit Document is not effectively connected with the conduct of a trade or business in the United States and is not a controlled foreign corporation related to the Parent Borrower (within the meaning of Section 864(d)(4) of the Code); ), (iiiy) Internal Revenue Service Form W-8BEN, Form W-8-BEN-E or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding Tax on payments under any Credit Document or (z) to the extent a Non-U.S. Lender is not the beneficial owner with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (or successor formincluding the forms described in clauses (x) of the Lenderand (y) above and in Section 5.4(i), accompanied by Form W-8ECIExhibit J-2, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor Exhibit J-3 and or other applicable form) certification documents from each beneficial owner owner, as applicable); provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and it may provide Exhibit J-4 on behalf of one or more of its direct or indirect partners that are claiming the portfolio interest exemption, ; and
(ii) deliver to the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) Parent Borrower and the Administrative Agent two accurate and complete original signed further copies of any other such form prescribed or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the most recent form previously delivered by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver it to the Parent Borrower or the Administrative Agent. If in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall promptly so advise the Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(fg) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes Tax or additional sums payable under this Section 5.4 (including an Other Taxes as to Tax) for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Parent Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Parent Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Parent Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyParent Borrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Parent Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. A Lender, the Administrative Agent or the Collateral Agent shall claim any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose any information regarding its tax affairs that it deems confidential to any Credit Party in connection with this clause (g).
(h) If the Parent Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Parent Borrower as the Parent Borrower may reasonably request in challenging such Tax. Subject to the provisions of Section 2.12, each Lender and Agent agrees to use reasonable efforts to cooperate with the Parent Borrower as the Parent Borrower may reasonably request to minimize any amount payable by the Parent Borrower or any U.S. Guarantor pursuant to this Section 5.4. The Parent Borrower shall indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Parent Borrower pursuant to this Section 5.4(h). Nothing in this Section 4.01(f5.4(h) shall obligate any Lender or Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(i) Without limiting the generality of Section 5.4(d), with respect to any amounts payable hereunder or under any other Credit Document, each Lender or Agent that is a United States person under Section 7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the Parent Borrower and the Administrative Agent two United States Internal Revenue Service Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Lender or Agent is exempt from United States backup withholding (i) on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or inaccurate in any respect, (iii) after the occurrence of a change in such Agent’s or Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Parent Borrower and the Administrative Agent and (iv) from time to time thereafter if reasonably requested by the Parent Borrower or the Administrative Agent.
(j) If a payment made to any Agent or Lender would be construed subject to obligate U.S. federal withholding Tax imposed under FATCA if such Agent or Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Agent or Lender shall deliver to the Parent Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Parent Borrower or such Agent, such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such other documentation reasonably requested by the Administrative Agent and the Parent Borrower as may be necessary for the Administrative Agent and the Parent Borrower to comply with their obligations under FATCA, to determine whether such Agent or Lender has or has not complied with such Agent’s or Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment and deliver to the Parent Borrower and the Administrative Agent two further copies of any such documentation on or before the date that any such documentation expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the documentation previously delivered by it to the Parent Borrower or the Administrative Agent. Solely for purposes of this subsection (j), “FATCA” shall include any amendments made to FATCA after the date of this Agreement and any current or future intergovernmental agreements and any Applicable Law implementing such agreement entered into in connection therewith.
(k) The agreements in this Section 5.4 shall survive the resignation or replacement of the Administrative Agent or any Lender to disclose its Tax returns assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder and under any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionCredit Document.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. The provisions below shall not apply with respect to any payments in connection with any Loan or other Credit Extension to the Foreign Borrowers.
(a) All Any and all payments made by or on account behalf of the Parent Borrower or any Credit Party U.S. Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as ; provided that if the Parent Borrower or any U.S. Guarantor or the Administrative Agent shall be required by Applicable Law (as determined in the good faith discretion of an applicable Requirements of Law. If withholding agent) to deduct or withhold any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then (i) the Parent Borrower or such U.S. Guarantor or the Administrative Agent shall make such deductions or withholdings and (ii) the Parent Borrower or such U.S. Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the extent relevant Governmental Authority within the time allowed and in accordance with Applicable Law. If such deduction or withholding a Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Parent Borrower or any U.S. Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Administrative Agent, the Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes are payable by the Parent Borrower or such U.S. Guarantor, as promptly as practicable thereafter, the Parent Borrower or the U.S. Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (iior other evidence acceptable to such Lender, acting reasonably) received by the applicable withholding agent will make Parent Borrower or such deductions or withholdings, and U.S. Guarantor showing payment thereof.
(iiib) the applicable withholding agent The Parent Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In additionAuthority Other Taxes in accordance with Applicable Law, or at the Credit Parties shall option of the Administrative Agent, timely pay reimburse it for the payment of any Other Taxes that are paid by the Administrative Agent to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(c) The Credit Parties jointly and severally agree, to Parent Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Parent Borrower or such Lender any U.S. Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) payable or paid by such Agent or Lender or required to be withheld or deducted from a payment to such Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or Other legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Parent Borrower by a Lender (with a copy to the Administrative Agent), the Administrative Agent or the Collateral Agent (as applicable) 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 Indemnified Taxes attributable to such Lender (but only to the extent that the Parent Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Parent Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.6 relating to the maintenance of a 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 this Agreement or any Credit Document, and any reasonable expenses arising therefrom or with respect thereof, 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 prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) 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 this Agreement or 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 paragraph (d).
(be) Any Non-U.S. Lender that is entitled to claiming a basis for an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Parent Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Parent Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent, such properly completed and executed documentation reasonably prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding or as will permit the Parent Borrower or the Administrative Agent to determine the withholding or deduction required to be made. In addition, any Lender, if requested by the Borrowers Parent Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as will enable the Borrowers Parent Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(f), 5.4(i) expiredand 5.4(j) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(cf) Without limiting the generality of Section 5.4(e), each Non-U.S. Lender with respect to any amounts payable hereunder or under any other Credit Document shall, to the foregoing, extent it is legally entitled to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Non-U.S. Lender becomes a party Lender under this Agreement (and from time to this Agreementtime thereafter upon the reasonable request of the Parent Borrower or the Administrative Agent), (i) two accurate and complete original signed executed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit J-1 representing that such Non-U.S. Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Parent Borrower, any interest payment received by such Non-U.S. Lender under this Agreement or successor formany other Credit Document is not effectively connected with the conduct of a trade or business in the United States and is not a controlled foreign corporation related to the Parent Borrower (within the meaning of Section 864(d)(4) of the Code); ), (iiiy) Internal Revenue Service Form W-8BEN, Form W-8-BEN-E or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding Tax on payments under any Credit Document or (z) to the extent a Non-U.S. Lender is not the beneficial owner with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (or successor formincluding the forms described in clauses (x) of the Lenderand (y) above and in Section 5.4(i), accompanied by Form W-8ECIExhibit J-2, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor Exhibit J-3 and or other applicable form) certification documents from each beneficial owner owner, as applicable); provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and it may provide Exhibit J-4 on behalf of one or more of its direct or indirect partners that are claiming the portfolio interest exemption, ; and
(ii) deliver to the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) Parent Borrower and the Administrative Agent two accurate and complete original signed further copies of any other such form prescribed or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the most recent form previously delivered by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver it to the Parent Borrower or the Administrative Agent. If in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall promptly so advise the Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(fg) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes Tax or additional sums payable under this Section 5.4 (including an Other Taxes as to Tax) for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Parent Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Parent Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Parent Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyParent Borrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Parent Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. A Lender, the Administrative Agent or the Collateral Agent shall claim any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose any information regarding its tax affairs that it deems confidential to any Credit Party in connection with this clause (g).
(h) If the Parent Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Parent Borrower as the Parent Borrower may reasonably request in challenging such Tax. Subject to the provisions of Section 2.122.12, each Lender and Agent agrees to use reasonable efforts to cooperate with the Parent Borrower as the Parent Borrower may reasonably request to minimize any amount payable by the Parent Borrower or any U.S. Guarantor pursuant to this Section 5.4. The Parent Borrower shall indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Parent Borrower pursuant to this Section 5.4(h). Nothing in this Section 4.01(f5.4(h) shall obligate any Lender or Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(i) Without limiting the generality of Section 5.4(d), with respect to any amounts payable hereunder or under any other Credit Document, each Lender or Agent that is a United States person under Section 7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the Parent Borrower and the Administrative Agent two United States Internal Revenue Service Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Lender or Agent is exempt from United States backup withholding (i) on or prior to the Closing Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or inaccurate in any respect, (iii) after the occurrence of a change in such Agent’s or Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Parent Borrower and the Administrative Agent and (iv) from time to time thereafter if reasonably requested by the Parent Borrower or the Administrative Agent.
(j) If a payment made to any Agent or Lender would be construed subject to obligate U.S. federal withholding Tax imposed under FATCA if such Agent or Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Agent or Lender shall deliver to the Parent Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Parent Borrower or such Agent, such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such other documentation reasonably requested by the Administrative Agent and the Parent Borrower as may be necessary for the Administrative Agent and the Parent Borrower to comply with their obligations under FATCA, to determine whether such Agent or Lender has or has not complied with such Agent’s or Lender’s FATCA obligations and to determine the amount, if any, to deduct and withhold from such payment and deliver to the Parent Borrower and the Administrative Agent two further copies of any such documentation on or before the date that any such documentation expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the documentation previously delivered by it to the Parent Borrower or the Administrative Agent. Solely for purposes of this subsection (j), “FATCA” shall include any amendments made to FATCA after the date of this Agreement and any current or future intergovernmental agreements and any Applicable Law implementing such agreement entered into in connection therewith.
(k) The agreements in this Section 5.4 shall survive the resignation or replacement of the Administrative Agent or any Lender to disclose its Tax returns assignment of rights by, or the replacement of, a Lender, the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder and under any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionCredit Document.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Indemnified Taxes or Other Taxes, except as required by applicable Requirements of Law. If ; provided that if the Borrower or any Taxes are Guarantor or the Administrative Agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings as are reasonably determined by the Borrower, such Guarantor or the Administrative Agent to be required by any applicable Requirement of Law, (ii) the Borrower, such Guarantor or the Administrative Agent, as applicable, shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after making all required deductions or and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.015.4) have been made, the Lender (or the Administrative Agent if or any Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copies copy of tax receipts an official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower or such Guarantor showing payment thereof. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for, for or on account of any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld from any amounts payable by or deducted by on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent from such payments, (i) shall be entitled to the extent make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and if such Tax is on account of an Indemnified Tax or Other a Non-Excluded Tax, then the sum Borrower shall increase the amounts payable shall be increased by to the applicable Credit Party as Recipient to the extent necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01Section) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) applicable Recipient receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), (ii) as soon as practicable thereafter, the applicable withholding agent will make such deductions Borrower shall send to the Administrative Agent the original or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to a certified copy of a receipt issued by the relevant Governmental Authority. In addition, a copy of the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesreturn reporting such payment, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly Borrower shall indemnify the Agents and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, Lenders for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Non-Excluded Taxes (including any Indemnified Taxes and Other Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), ) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or 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. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any Other Taxes. The agreements in this Section 5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment 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,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such L▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS 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 applicable payments under any Credit Document, IRS Form W-8BEN or IRS 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;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. 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 L-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” within the meaning of Section 957 of the Code related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(1) to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower 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 Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower 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 Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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), such 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 (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any). Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or any Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such L▇▇▇▇▇, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver 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 Credit Parties and to Lender from any successor Administrative Agent other source against any documentation provided by such Lender amount due to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (d).
(fe) If Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund assignment of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments maderights by, or additional amounts paidthe replacement of, by such Credit Party under Section 4.01(a) with respect to a Lender, the Indemnified Taxes termination of the Commitments and the repayment, satisfaction or Other Taxes giving rise to such refund), net discharge of all reasonable out-of-pocket expenses (including obligations under any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionDocument.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement (Grindr Inc.)
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes; provided that if the Borrower, except as required by any Guarantor, the Administrative Agent or any other applicable Requirements of Law. If any Taxes are withholding agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 4.015.4) have been madethe Administrative Agent, the Lender (Collateral Agent, or the Administrative Agent if applicable Issuing Bank or Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Guarantor shall send to the Administrative Agent certified copies of tax receipts evidencing such payment by for its own account or for the applicable Credit Party or other evidence account of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes Issuing Bank or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest a certified copy of an official receipt (or other than any interest paid evidence acceptable to such Issuing Bank or Lender, acting reasonably) received by the relevant Governmental Authority with respect to Borrower or such refund); provided that the relevant Guarantor showing payment thereof. Without duplication, after any payment of Taxes by any Credit Party, upon the request of Party or the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant a Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing Authority as provided in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.-102- 727670773 12335469
Appears in 1 contract
Sources: Credit Agreement (EP Energy Corp)
Net Payments. (a) All payments made by or on account of any Credit Party hereunder and under any other Credit Document shall will be made free and clear of, and without deduction or withholding for, for any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent unless such deduction or withholding is required by any applicable law. If any Credit Party, the Administrative Agent or any other applicable withholding agent is required by applicable law to make any deduction or withholding on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Taxes in respect of any payment in respect of any Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been madeDocument, (ii) the applicable withholding agent will make such deductions or withholdings, and (iiii) the applicable withholding agent shall make such deduction or withholding and timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon law and (ii) if the Tax in question is an Indemnified Tax or Other Tax, the sum payable by the applicable Credit Party shall be increased as practicable may be necessary so that after the payment withholding or deduction for or on account of any such Indemnified Taxes or Other Taxes described in has been made (including any such deductions or withholdings attributable to any payments required to be made under this Section 4.01 by 5.04), each of the Lender or the Administrative Agent (as applicable), receives on the due date a net sum equal to what it would have received had no such withholding or deduction been made. The applicable Credit Parties, the Credit Parties Party will furnish to the Administrative Agent Agent, as soon as practicable after any payment of any Taxes to a Governmental Authority pursuant to this Section 5.04(a), certified copies of tax receipts (or such other evidence reasonably satisfactory to the Administrative Agent) evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties agree to, jointly and severally agreeseverally, to indemnify and hold harmless each Lender and the Administrative Agent and each Lender, and reimburse the Administrative Agent and each LenderAgent, within 10 days of after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), and any reasonable out-of-pocket expenses arising therefrom ) payable by such Lender or with respect theretothe Administrative Agent, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by the Administrative Agent or a Lender (or by the Administrative Agent on its own behalf or on behalf of a Lender) , shall be conclusive absent manifest error.
(b) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agentshall, at the time or such times as are reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed provide the Borrower and executed the Administrative Agent with any documentation prescribed by laws or reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent certifying as to any entitlement of such Lender to an exemption from, or a reduced rate ofreduction in, any applicable withholding Tax. In addition, each Lender shall deliver Tax with respect to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent any payments to determine whether be made to such Lender is subject to backup withholding or information reporting requirementsunder any Credit Document. Each such Lender shall, whenever a lapse in time or change in circumstances renders any such documentation (including any specific documents documentation required below in this Section 4.01(c5.04(b)) expiredobsolete, obsolete expired or inaccurate in any respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Borrower or the Administrative Agent) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability to do so.
(c) . Without limiting the generality of the foregoing, :
(I1) (x) each 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 agrees shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to before the date on which it becomes a party to this Agreement, (i) Agreement two accurate properly completed and complete duly signed original signed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding.
(2) Each Lender that 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 (a “Foreign Lender”) shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement whichever of the following is applicable:
(A) Internal Revenue Service two properly completed and duly signed original copies of IRS Form W-8BEN or W-8BEN-E (or any successor formforms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party or party,
(B) Internal Revenue Service two properly completed and duly signed original copies of IRS Form W-8ECI (or any successor formforms); ,
(iiC) in the case of a Foreign Lender claiming the benefits of the exemption from U.S. federal withholding Tax for portfolio interest under Section 871(h) or Section 881(c) of the Code with respect to payments of "portfolio interest," a certificate Code, (A) two properly completed and duly signed certificates substantially in the form of Exhibit C (any such certificate, a "U.S. Tax Compliance “Section 5.04(b) Certificate"”) and (B) two accurate properly completed and complete duly signed original signed copies of Internal Revenue Service IRS Form W-8BEN or W-8BEN-E (or any successor formforms); ,
(iiiD) to the extent a Foreign Lender is not the beneficial owner (for example, where the Foreign Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service IRS Form W-8IMY (or any successor formforms) of the Foreign Lender, accompanied by a Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Section 5.04(b) Certificate, Form W-9, Form W-8IMY, and/or W-8IMY or any other required information (or any successor or other applicable formforms) from each beneficial owner that would be required under this Section 4.01(c5.11(d) if such beneficial owner were a Lender Lender, as applicable (provided that, that if the Foreign Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), ) and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Section 5.04(b) Certificate may be provided by such Foreign Lender on behalf of such direct or indirect partner(s)); or , or
(ivE) two accurate properly completed and complete duly signed original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. United States federal withholding Tax tax on any payments to such Lender under the Credit Documents; and .
(y3) each If a payment made to a Lender that is a United States person, as defined 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 7701(a)(301471(b) or 1472(b) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agentas applicable), on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their FATCA obligations under FATCA, to determine whether such Lender has or has not complied with such Lender's ’s FATCA obligations under FATCA and to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.015.04(b), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(ec) Each Lender hereby authorizes Without duplication of any payments by a Credit Party required under Section 5.04(a), the Administrative Agent to deliver Borrower shall timely pay any Other Taxes to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c)relevant Governmental Authority in accordance with applicable law.
(fd) If the any Lender or Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified pursuant to this Section 5.04 (including by the Credit Parties or with respect to which a Credit Party has paid payment of additional amounts pursuant to this Section 4.01(a5.04), it shall pay to the relevant Credit Party indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party made under this Section 4.01(a) 5.04 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party. Such indemnifying party, upon the request of the Administrative Agent or such Lenderindemnified party, agrees shall repay to repay such indemnified party the amount paid over pursuant to such Credit Party this Section 5.04(d) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or that such Lender indemnified party is required to repay such refund to such Governmental Authority. Nothing Notwithstanding anything to the contrary in this Section 4.01(f5.04(d), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 5.04(d) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 5.04(d) shall not be construed to obligate the Administrative Agent or require any Lender indemnified party to disclose make available its Tax returns (or any other information regarding relating to its Tax affairs Taxes that it deems confidential) to the indemnifying party or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionPerson.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Arc Document Solutions, Inc.)
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable The Credit Parties will furnish to the Agents within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish is due pursuant to the Administrative Agent applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent Agents and each Lender, and reimburse the Administrative Agent Agents and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent Agents or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent Agents or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Lender, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent Agents or a Lender (or by the Administrative Agent Agents on behalf of a Lender) ), shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reduce rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Borrower or the Administrative Agent) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the Closing Date or, in the case of a Lender that is a Lender to the Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C ▇-▇, ▇-▇, ▇-▇ or D-4 (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); ) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note, or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulationsregulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. United States federal withholding Tax on any payments to such Lender under the Credit DocumentsTax; and (y) each Each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to at the date on which it becomes a party to this Agreementtimes specified in Section 5.04(b), two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying form that such Lender Person is exempt from United States backup withholding and (II) each Lender entitled to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that provide at such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determinestime, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as order to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party qualify for an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.exemption from
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes; provided that if the Borrower, except as required by any Guarantor or the Administrative Agent or any other applicable Requirements of Law. If any Taxes are withholding agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings of Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section 4.015.4) have been madethe Administrative Agent, the Lender (Collateral Agent, or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(iib) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after , or at the payment option of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing timely reimburse it for, any Other Taxes (whether or not such payment Other Taxes were correctly or legally imposed or asserted by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen (15) Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest errorerror and shall constitute a required notice for purposes of Section 2.13.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit the Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(e)(i)(A), (B) expiredand (C) and Section 5.4(h) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of Section 5.4(d), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally eligible to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Lender becomes a party to Lender under this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, United States Internal Revenue Service (“IRS”) Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form) (together with a certificate (substantially in the form of Exhibit K hereto) representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a “10-percent shareholder” (within the meaning of Section 881(c)(3)(B) of the Code) of the Borrower, and is not a CFC described in Section 881(c)(3)(C) of the Code), (B) IRS Form W-8BEN or IRS Form W-8ECI or IRS Form W-8BEN-E, as applicable (or any applicable successor form), in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (C) IRS Form W-8IMY (or any applicable successor form) and all necessary attachments (including the forms described in clauses (A) and (B) above, provided that if the Non-U.S. Lender is a partnership and not a participating Lender, and one or more of the partners is claiming portfolio interest treatment, a certificate substantially in the form of Exhibit C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate K hereto may be provided by such Non-U.S. Lender on behalf of such direct or indirect partner(s)); partners) or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to such Lender under permit the Credit DocumentsBorrower to determine the withholding or deduction required to be made; and and
(yii) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) promptly after such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent or promptly notify in writing the Borrower and the Administrative Agent of such Non-U.S. Lender’s inability to do so.
(iii) Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased.
(f) In addition, to the extent it is legally eligible to do so, each Agent shall deliver to the Borrower (x)(I) prior to the date on which it the first payment by the Borrower is due hereunder or (II) prior to the first date on or after the date on which such Agent becomes a party successor Agent pursuant to Section 12.9 on which payment by the Borrower is due hereunder, as applicable, two copies of a properly completed and executed IRS Form W-9 certifying its exemption from U.S. Federal backup withholding or a properly completed and executed applicable IRS Form W-8 certifying its non-U.S. status and its entitlement to any treaty benefits and its status as a qualified intermediary or withholding foreign partnership, and (y) on or before the date on which any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of such documentation.
(g) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has received a refund of an Indemnified Tax or Other Tax for which it has been indemnified pursuant to this AgreementSection 5.4 (including by the payment of additional amounts pursuant to this Section 5.4), two accurate then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all reasonable out-of-pocket expenses of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and complete original signed copies without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of Internal Revenue Service Form W-9the refund as will leave it, after such reimbursement, not in a less favorable net after-Tax position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the Borrower or such Guarantor, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Party in connection with this clause (g) or any other provision of this Section 5.4.
(h) Each U.S. Lender shall deliver to the Borrower and the Administrative Agent two IRS Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such U.S. Lender is exempt from United States federal backup withholding (i) on or prior to the Closing Date (yor on or prior to the date it becomes a party to this Agreement), (ii) an on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the U.S. Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender under this Agreement or any other 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 Internal Revenue Service Form W-8 certifying reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender's ’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.4(j), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Indemnified Taxes, except as ; provided that if the Borrower or any Guarantor or the Administrative Agent shall be required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Applicable Law to be withheld deduct or deducted by withhold any applicable withholding agent Indemnified Taxes from such payments, then (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all required deductions or and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.014.4) have been madethe Administrative Agent, the Lender (Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings, withholdings and (iii) the applicable withholding agent Borrower or such Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, Authority within the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority time allowed and in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copies copy of tax receipts evidencing such payment by the applicable Credit Party an original official receipt (or other evidence of acceptable to such Lender, acting reasonably) received by the Borrower or such Guarantor showing payment reasonably satisfactory to the Administrative Agent. thereof.
(b) The Credit Parties jointly Borrower shall timely pay and severally agree, to shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and reimburse hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 4.4) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Non-U.S. Lender that is entitled to an exemption from or reduction of withholding Tax tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. A Lender’s obligation under the Borrowers prior sentence shall apply only if the Borrower or the Administrative Agent, certifying as to any entitlement of Agent has made a request for such Lender to an exemption from, or a reduced rate of, withholding Taxdocumentation. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, Agent shall deliver such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. .
(e) Each Non-U.S. Lender with respect to any Loan made to the Borrower shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability extent it is legally entitled to do so.:
(ci) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or Agent, prior to the date on which it becomes a party the first payment to this Agreementthe Non-U.S. Lender is due hereunder, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, United States Internal Revenue Service Form W-8BEN (together with a certificate substantially in the form of Exhibit C H representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, any interest payment received by such certificateNon-U.S. Lender under this Agreement or any other Credit Document is not effectively connected with the conduct of a trade or business in the United States and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code)), a "U.S. Tax Compliance Certificate"(y) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BENForm W-8ECI, in each case properly completed and duly executed by such Non-E U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement or (z) if a Non-U.S. Lender does not act or successor form); (iii) ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the extent a Lender is not the beneficial owner Credit Documents (for example, in the case of a typical participation or where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of pass through entity) Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law all necessary attachments (including the Treasury Regulationsforms described in clauses (x) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States personabove, as defined in Section 7701(a)(30required); and
(ii) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower. If in any such case any Change in Law has occurred prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, any such delivery would otherwise be required that renders any such form inapplicable or any successor form, certifying that would prevent such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's nonNon-U.S. status. A Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall deliver to promptly so advise the Company Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes or Tax (including an Other Taxes as to Tax) for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyBorrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate A Lender, the Administrative Agent or the Collateral Agent shall claim any Lender refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. Neither the Lender, the Administrative Agent nor the Collateral Agent shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations to any Person Credit Party in connection with this clause (f) or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 4.4.
(g) For If the avoidance Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of doubtSection 2.11, for purposes of each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender4.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall will be made without setoff, counterclaim or other defense. Except as required by applicable law, all such payments will be made free and clear of, and without deduction or withholding for, for any Taxes, except as required by applicable Requirements of Law. If any Taxes are required applicable law (as determined in the good faith discretion of the applicable Credit Party) requires the deduction or withholding of any Tax from any such payment by applicable Requirements of Law such Credit Party, then such Credit Party shall be entitled to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent make such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements law, and if any such Tax is an Indemnified Tax, then the Credit Party agrees to pay the full amount of Lawsuch Indemnified Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under the relevant Credit Document, after withholding or deduction for or on account of any Indemnified Taxes (including such deductions and withholdings applicable to additional sums payable under this Section 6.04), will not be less than the amount provided for under such Credit Document. As soon as practicable after the any payment of Taxes by any Indemnified Taxes or Other Taxes described in Credit Party to a Governmental Authority pursuant to this Section 4.01 by the 6.04, such Credit Parties, the Credit Parties will furnish Party shall deliver to the Administrative Agent the original or a certified copies copy of tax receipts a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties shall jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each LenderRecipient, within 10 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by to the Administrative Agent or Borrower 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. The Credit Parties shall 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.
(b) Any In addition to the obligations set forth in Section 6.04(c) or (d), as applicable, any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Administrative Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Administrative Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 6.04(b), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including other than such documentation set forth in Sections 6.04(c), (d) and (e) below), shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any specific documents required below in Section 4.01(c)) expired, obsolete material unreimbursed cost or inaccurate in any respect, deliver promptly to expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(c) Without limiting To the generality of the foregoingextent eligible, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall for U.S. federal income tax purposes agrees to deliver to the U.S. Parent Administrative Borrower and the Administrative Agent on or prior to the Effective Date or, in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 14.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (and from time to time thereafter upon the reasonable request of the Administrative Borrower or the Administrative Agent) (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8ECI, W-8BEN-E or Form W-8BEN (with respect to an income tax treaty) (or successor formforms) claiming eligibility for benefits (as applicable) certifying to such Lender’s entitlement as of an income tax treaty such date to which the any eligible reduction in, or complete exemption from, United States is a party withholding tax with respect to payments to be made under any Credit Document, or (Bii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI W-8ECI, Form W-8BEN-E or Form W-8BEN (or successor form); (ii) in the case of a Lender 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 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 C (any such certificate, a "U.S. Tax Compliance “Section 6.04(c)(ii) Certificate"”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or Form W-8BEN-E (with respect to the portfolio interest exemption) (or successor form); (iii) certifying to such Lender’s eligibility to an entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under any Credit Document. In addition, each Lender agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Lender will deliver to the extent Administrative Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN-E or Form W-8BEN (with respect to the benefits of any income tax treaty), or Form W-8BEN-E or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 6.04(c)(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 any eligible continued exemption from or reduction in United States withholding tax with respect to payments under any Credit Document, or such Lender shall immediately notify the Administrative Borrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Lender shall not be required to deliver any such Form or Certificate pursuant to this Section 6.04(c).
(d) Any Lender 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 Administrative Borrower and the Administrative Agent on or prior to the Effective Date or, in the case of a Lender that is not an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 14.04(b) (unless the beneficial owner respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, (for example, where and from time to time thereafter upon the Lender is a partnership reasonable request of the Administrative Borrower or a participating Lenderthe Administrative Agent), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner W-9 certifying that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for exempt from U.S. federal income Tax purposes (and not backup withholding tax. In addition, each Lender agrees that from time to time after the Effective Date, when a participating Lender)lapse in time or change in circumstances renders the previous Form obsolete or inaccurate in any material respect, and one or more direct or indirect partners are claiming to the portfolio interest exemptionextent eligible, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall will deliver to the U.S. Parent Administrative Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-9W-9 and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from U.S. federal backup withholding tax with respect to payments under any Credit Document, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to shall immediately notify the Canadian Borrowers shall deliver to the Company Administrative Borrower and the Administrative Agent on or prior of its inability to the date on deliver any such Form, in which it becomes a party case such Lender shall not be required to deliver any such Form pursuant to this Agreement two accurate and complete original signed copies of either Section 6.04(d).
(xe) Internal Revenue Service Form W-9, or If a payment made to a Lender under any successor form, certifying that Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender is exempt from United States federal backup withholding were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Administrative Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, FATCA and to determine whether that such Lender has complied with such Lender's ’s obligations under FATCA and or to determine, if necessary, determine the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 6.04(e), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement (STG Group, Inc.)
Net Payments. (a) All payments made by or on account behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for, for or on account of any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld from any amounts payable by or deducted by on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent from such payments, (i) shall be entitled to the extent make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and if such Tax is on account of an Indemnified Tax or Other a Non-Excluded Tax, then the sum Borrower shall increase the amounts payable shall be increased by to the applicable Credit Party as Recipient to the extent necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01Section) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) applicable Recipient receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), (ii) as soon as practicable thereafter, the applicable withholding agent will make such deductions Borrower shall send to the Administrative Agent the original or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to a certified copy of a receipt issued by the relevant Governmental Authority. In addition, a copy of the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesreturn reporting such payment, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly Borrower shall indemnify the Agents and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, Lenders for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Non-Excluded Taxes (including any Indemnified Taxes and Other Non- Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), ) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by the Administrative an Agent or 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.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under . In addition, the Borrower shall pay any Credit Document shall deliver Other Taxes to the applicable Borrowers and relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, at shall timely reimburse it for the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies payment of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. statusOther Taxes. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing The agreements in this Section 4.01(f5.04(a) shall be construed to obligate survive the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes termination of this Section 4.01, Agreement and the term "Lender" shall include any Issuing Bank payment of the Loans and any Swingline Lenderall other amounts payable hereunder.
Appears in 1 contract
Sources: Credit Agreement (Grindr Inc.)
Net Payments. For purposes of this Section 4.4, the term “Requirements of Law” includes FATCA.
(a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by ; provided that if the applicable Requirements of Law. If any Taxes are Withholding Agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable Withholding Agent shall make such deductions or withholdings as are reasonably determined by the applicable Withholding Agent to be required by any applicable Requirement of Law, (ii) the applicable Withholding Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings of Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section 4.014.4) have been madethe Administrative Agent, the Lender (Collateral Agent or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Without duplication, (ii) after any payment of Taxes by any Credit Party or the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld Administrative Agent to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant a Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described provided in this Section 4.01 by the Credit Parties4.4, the Credit Parties will furnish Borrower shall deliver to the Administrative Agent certified copies or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of tax receipts a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent. , as the case may be.
(b) The Credit Parties jointly and severally agreeBorrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, to or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.014.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, provided, however, the right to indemnification shall be subject to such notice requirements of Section 2.12. A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to the Borrower by a Lender, the Administrative Agent or the Collateral Agent (as applicable) 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 any Credit Party has not already indemnified the Administrative Agent for such Taxes and without limiting the obligation of the Credit Parties to do so) and (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.6(c) relating to the maintenance of a Participant Register, in either 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any . Each Lender that is entitled hereby authorizes the Administrative Agent to an exemption from or reduction of withholding Tax with respect set off and apply any and all amounts at any time owing to payments made 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 paragraph (d).
(e) Each Lender shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested by information as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c4.4(f)(i)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent4.4(g) or promptly notify 4.4(i) below) shall not be required if in the Borrowers and Lender’s or Agent’s, as applicable, reasonable judgment such completion, execution or submission would subject such Lender or Agent to any material unreimbursed cost or expense or would materially prejudice the Administrative Agent in writing legal or commercial position of its inability to do sosuch Lender or Agent.
(cf) Without limiting the generality of Section 4.4(e), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally eligible to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or Agent, prior to the date on which it becomes a party the first payment to this Agreementthe Non-U.S. Lender is due hereunder, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, United States Internal Revenue Service Form W-8BEN or Form W-8BEN-E (as applicable) (or any applicable successor form) together with a certificate (substantially in the form of Exhibit C H hereto (any the “Non-Bank Tax Certificate”) representing that such certificateNon-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a "U.S. Tax Compliance Certificate"“10-percent shareholder” (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and two accurate and complete original signed copies is not a CFC related to the Borrower (within the meaning of Section 881(c)(3)(C) of the Code), (B) Internal Revenue Service Form W-8BEN or Form W-8BEN-E E, as applicable, or Form W-8ECI (or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (iiiC) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or any applicable successor form) of and all necessary attachments (including the Lenderforms described in clauses (A) and (B) above, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect of the partners are is claiming the portfolio interest exemptiontreatment, the U.S. Non-Bank Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such direct or indirect partner(s)); partners) or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, U.S. in United States federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to such Lender under permit the Credit DocumentsBorrower to determine the withholding or deduction required to be made; and and
(yii) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent. Any Non-U.S. Lender that becomes legally ineligible to update any form or certification previously delivered shall promptly notify the Borrower and the Administrative Agent in writing of such Non-U.S. Lender’s inability to do so. Each Person that shall become a Participant or a Lender pursuant to Section 12.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 4.4(f); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, each Agent shall deliver to the Borrower prior to the date on which it the Agent becomes a party to this Agreementan Agent hereunder, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding a properly completed and executed (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (xa) Internal Revenue Service Form W-9, or any successor form, W-9 certifying that such Lender is exempt its exemption from United States federal U.S. Federal backup withholding or (yb) an applicable (i) Internal Revenue Service Form W-8 W-8ECI (with respect to any payments to be received on its own behalf) and (ii) Internal Revenue Service Form W-8IMY (for all other payments), certifying on Part I and Part VI of such Lender's non-Internal Revenue Service Form W-8IMY that it is a U.S. statusbranch that has agreed to be treated as a U.S. person for United States federal withholding tax purposes with respect to payments received by it from the Borrower. A Lender Each Agent shall deliver to the Company Borrower additional documentation on or before the date that any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and the Administrative Agent, at the from time or times to time thereafter if reasonably requested by the Borrowers Borrower, or shall promptly notify the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of Borrower at any time it determines it is no longer in a position to provide the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of certifications described in the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(fg) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faithdiscretion, that it has had received a refund of any an Indemnified Taxes Tax or Other Taxes as to Tax for which it a payment has been indemnified made by the Credit Parties Borrower or with respect to which a Credit Party has paid additional amounts any Guarantor pursuant to Section 4.01(a)this Agreement or any other Credit Document, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower or any Guarantor, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion will leave it, after such reimbursement, in no better or worse position than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the relevant Credit PartyBorrower or such Guarantor, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to the Borrower or such Credit Party Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to disclose make available its Tax tax returns (or any other information regarding relating to its Tax affairs or computations taxes that it deems confidential) to any Person or otherwise to arrange its Tax affairs Credit Party in any manner other than as it determines in its sole discretion.
connection with this clause (g) For the avoidance of doubt, for purposes or any other provision of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender4.4.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Lilis Energy, Inc.)
Net Payments. Reduced Return. ----------------------------
(a) All payments with respect to any Advance shall be made by in such amounts as may be necessary in order that all such payments after withholding for or on account of any Credit Party under any Credit Document shall be made free and clear ofpresent or future taxes, and without deduction levies, imports, duties or withholding for, any Taxes, except as required by applicable Requirements other similar charges of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted whatsoever nature imposed by any applicable withholding agent from such paymentsgovernment or any political subdivision or taxing authority hereof, (i) other than any taxes on or measured by the net income of the Lender pursuant to the extent state, federal and local tax laws of the jurisdiction where the Lender's principal office or offices or lending office or offices are located, compensate Lender for any additional cost or reduced amount receivable of making or maintaining advances as a result of such deduction or withholding is on account of an Indemnified Tax or Other Taxtaxes, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been madeimports, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party duties or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest errorcharges.
(b) Any If, after the date hereof, the Lender shall have determined that is entitled the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate or return on the Lender's capital as a consequence of its obligations hereunder to an exemption from a level below that which the Lender could have achieved but for such adoption, change or reduction of withholding Tax compliance (taking into consideration the Lender's policies with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested capital adequacy) by an amount deemed by the Borrowers or the Administrative AgentLender to be material, such properly completed and executed documentation reasonably requested then from time to time, within thirty (30) days after demand by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an Lender such additional amount equal to or amounts as will compensate the Lender for such refund (but only to the extent of indemnity payments made, or additional amounts paid, by reduction. In determining such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01amount, the term "Lender" shall include Lender may use any Issuing Bank reasonable averaging and any Swingline Lenderattribution methods.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Preferred Credit Corp)
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable The Credit Parties will furnish to the Agents within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish is due pursuant to the Administrative Agent applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent Agents and each Lender, and reimburse the Administrative Agent Agents and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent Agents or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent Agents or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Lender, and any reasonable out-of-of- pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent Agents or a Lender (or by the Administrative Agent Agents on behalf of a Lender) ), shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reduce rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Borrower or the Administrative Agent) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the Closing Date or, in the case of a Lender that is a Lender to the Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04 (b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C ▇-▇, ▇-▇, ▇-▇ or D-4 (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); ) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note, or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulationsregulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. United States federal withholding Tax on any payments to such Lender under the Credit DocumentsTax; and (y) each Each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to at the date on which it becomes a party to this Agreementtimes specified in Section 5.04(b), two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying form that such Lender Person is exempt from United States backup withholding and (II) each Lender entitled to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that provide at such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determinestime, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as order to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party qualify for an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.exemption from
Appears in 1 contract
Sources: Revolving Credit Agreement
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Borrower or the Administrative Agent) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver if any payment made to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender claiming exemption from U.S. federal withholding under any Credit Document would be subject to Tax under Section 871(himposed by FATCA if such Lender or such Agent were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 881(c) of the Code with respect to payments of "portfolio interest," a certificate substantially in the form of Exhibit C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(301472(b) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agentas applicable), on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Closing Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender ▇▇▇▇▇▇ to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement (SunOpta Inc.)
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as ; provided that if the Borrower or any Guarantor or the Administrative Agent shall be required by Applicable Law (as determined in the good faith discretion of an applicable Requirements of Law. If withholding agent) to deduct or withhold any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then (i) the Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings and (ii) the Borrower or such Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the extent relevant Governmental Authority within the time allowed and in accordance with Applicable Law. If such deduction or withholding a Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Administrative Agent, the Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes are payable by the Borrower or such Guarantor, as promptly as practicable thereafter, the Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (iior other evidence acceptable to such Lender, acting reasonably) received by the applicable withholding agent will make Borrower or such deductions or withholdings, and Guarantor showing payment thereof.
(iiib) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In additionAuthority Other Taxes in accordance with Applicable Law, or at the Credit Parties shall option of the Administrative Agent, timely pay reimburse it for the payment of any Other Taxes that are paid by the Administrative Agent to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) payable or paid by such Agent or Lender or required to be withheld or deducted from a payment to such Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or Other legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), the Administrative Agent or the Collateral Agent (as applicable) 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 Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such ▇▇▇▇▇▇’s failure to comply with the provisions of Section 13.6 relating to the maintenance of a 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 this Agreement or any Credit Document, and any reasonable expenses arising therefrom or with respect thereof, 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 prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) 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 this Agreement or 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 paragraph (d).
(be) Any Non-U.S. Lender that is entitled to claiming a basis for an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding or as will permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. In addition, any Lender, if requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(f), 5.4(i) expiredand 5.4(j) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(cf) Without limiting the generality of Section 5.4(e), each Non-U.S. Lender with respect to any amounts payable hereunder or under any other Credit Document shall, to the foregoing, extent it is legally entitled to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Non-U.S. Lender becomes a party Lender under this Agreement (and from time to this Agreementtime thereafter upon the reasonable request of the Borrower or the Administrative Agent), (i) two accurate and complete original signed executed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit J-1 representing that such Non-U.S. Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, any interest payment received by such Non-U.S. Lender under this Agreement or successor formany other Credit Document is not effectively connected with the conduct of a trade or business in the United States and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code); ), (iiiy) Internal Revenue Service Form W-8BEN, Form W-8-BEN-E or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding Tax on payments under any Credit Document or (z) to the extent a Non-U.S. Lender is not the beneficial owner with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (or successor formincluding the forms described in clauses (x) of the Lenderand (y) above and in Section 5.4(i), accompanied by Form W-8ECIExhibit J-2, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor Exhibit J-3 and or other applicable form) certification documents from each beneficial owner owner, as applicable); provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and it may provide Exhibit J-4 on behalf of one or more of its direct or indirect partners that are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or and
(ivii) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower or the Administrative Agent. If in any such case any Change in Law has occurred prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, any such delivery would otherwise be required that renders any such form inapplicable or any successor form, certifying that would prevent such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's nonNon-U.S. status. A Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall deliver to promptly so advise the Company Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(fg) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes Tax or additional sums payable under this Section 5.4 (including an Other Taxes as to Tax) for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyBorrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing A Lender shall claim any refund that it determines is available to it, unless it concludes in this Section 4.01(f) shall its sole discretion that it would be construed to obligate adversely affected by making such a claim. None of any Lender, the Administrative Agent or any Lender the Collateral Agent shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations that it deems confidential to any Person or otherwise to arrange its Tax affairs Credit Party in any manner other than as it determines in its sole discretionconnection with this clause (g).
(gh) For If the avoidance Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of doubtSection 2.12, for purposes of each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender5.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Avaya Holdings Corp.)
Net Payments. (a) All Subject to the following sentence, all payments made by or on account behalf of the Borrower under this Agreement or any Credit Party under any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any current or future Taxes (including Other Taxes, except as required by applicable Requirements of Law) other than Excluded Taxes. If any Taxes other than Excluded Taxes (such Taxes, “Non-Excluded Taxes”) are required by applicable Requirements of Law to be withheld from any amounts payable under this Agreement, the Borrower shall increase the amounts payable to such Agent or deducted by any applicable withholding agent from such payments, (i) Lender to the extent necessary to allow such deduction Agent or withholding is such Lender to receive (after payment of all Non-Excluded Taxes, including any such Non-Excluded Taxes imposed on account of an Indemnified Tax additional amounts payable hereunder) interest or Other Taxany such other amounts payable hereunder at the rates or in the amounts specified in this Agreement. Whenever any Non-Excluded Taxes are paid by the Borrower, as soon as practicable thereafter, the sum payable Borrower shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable send to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if for its own account or for the account of such Secured Party, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority, the Borrower shall indemnify the Agents and the Lenders for any such Non- Excluded Taxes plus any incremental taxes, interest, costs or penalties that are paid by any Agent or any Lender as a result of any such failure. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or Lender (with a copy to the Administrative Agent), or by the Administrative Agent receives the payment for on its own account) receives an amount equal to the sum it would have received had no such deductions behalf or withholdings been madeon behalf of a Lender, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authoritybe conclusive absent manifest error. In addition, the Credit Parties Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements law. The agreements in this Section 5.04(a) shall survive the termination of Law. As soon as practicable after this Agreement and the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or Loans and all other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest errorhereunder.
(bi) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document this Agreement shall deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Borrower or 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; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, whenever upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b) or (c), as applicable; provided, that in the case of a lapse in time or change in circumstances renders Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii), (including any specific documents required below in Section 4.01(ciii) and (iv)) expired, obsolete that in such Lender’s reasonable judgment would subject such Lender to any material unreimbursed cost or inaccurate in any respect, deliver promptly to expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do so.such Lender:
(cii) Without limiting the generality of the foregoing, (I) (x) each Lender in the event that the Borrower is not a “United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, Person” as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes any Lender that is not a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from “United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including Person” as prescribed by defined in Section 1471(b)(3)(C)(i7701(a)(30) of the CodeCode (a “Non-U.S. Lender”) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.shall:
Appears in 1 contract
Sources: Credit Agreement
Net Payments. (a) All Unless required by a Requirement of Tax Law (as determined in good faith by the Administrative Agent or other applicable withholding agent), all payments made by or on account behalf of the Borrower or any other Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any In the event that an applicable withholding agent is required to deduct or withhold any Indemnified Taxes from such payments, or in respect of any payment hereunder or under any other Credit Document (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased as determined in good faith by the applicable Credit Party as necessary so that after all required deductions or withholdings withholding agent), then:
(including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (iii) the applicable withholding agent will make such deductions shall deduct or withholdings, and withhold the full amount required to be so withheld or deducted;
(iiiii) the applicable withholding agent shall timely pay the full amount such withheld or deducted or withheld amounts directly to the relevant Governmental Authority in accordance with the applicable Requirement of Tax Law;
(iii) if a Credit Party is the applicable withholding agent, such Credit Party will promptly forward to the Administrative Agent an official receipt or other documentation reasonably satisfactory to the Administrative Agent evidencing such payment to such Governmental Authority. In addition, ; and
(iv) the relevant Credit Parties Party will pay to the Administrative Agent for the account of each affected Lender such additional amount or amounts as are necessary to ensure that the net amount actually received by each such Lender will equal the full amount such Lender would have received had no such withholding or deduction been required.
(b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Tax Law. As soon as practicable after the payment of , other than any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesthat are Other Connection Taxes arising as a result of a Lender’s voluntary assignment or transfer of, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing or participation in, such payment by the applicable Credit Party Lender’s right’s or other evidence of such payment reasonably satisfactory to the Administrative Agent. obligations hereunder (“Other Connection Assignment Taxes”).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 20 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01)5.4) and Other Taxes paid or payable by the Administrative Agent or such Lender, as the case may be, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such any Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender (with a copy to the Administrative Agent or Lender (Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender) , shall be conclusive absent manifest error.
(b1) Any Lender that is entitled to an exemption from from, or reduction of of, any applicable withholding Tax tax with respect to any payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the any time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if requested by the Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to source withholding or backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required other than such documentation set forth below in the following subparagraph (2) of this Section 4.01(c5.4(d)) expiredshall not be required if in the Lender’s 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. Upon the reasonable request of the Borrower or the Administrative Agent, any Lender shall update any form or certification previously delivered pursuant to this Section 5.4(d). If any form or certification previously delivered pursuant to this Section 5.4(d) expires or becomes obsolete or inaccurate in any respectrespect with respect to a Lender, deliver such Lender shall promptly to the applicable Borrowers (and the Administrative Agent updated in any event within 10 days after such expiration, obsolescence or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agentinaccuracy) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability such expiration, obsolescence or inaccuracy and update the form or certification if it is legally able to do so.
(c2) Without limiting the generality of the foregoing, (I) (x) each Non-U.S. Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver shall, to the U.S. Parent Borrower and the Administrative Agent on or extent it is legally able to do so:
(i) prior to the date on which it a Lender becomes a party to Lender under this Agreement, (i) deliver to the Borrower and the Administrative Agent two accurate and complete original signed copies of either (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ” Internal Revenue Service Form W-8BEN or any applicable successor form (together with a certificate substantially in the form of Exhibit C F-1, F-2, F-3 or F-4, as applicable, representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (any within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code) and that no interest payments in connection with the Credit Documents are effectively connected with such certificate, Non-U.S. Lender’s conduct of a "U.S. trade or business (a “U.S. Tax Compliance Certificate"”)), (y) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (Form W-8ECI or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under any Credit Document or (iiiz) to in the extent case of a Non-U.S. Lender that is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or participating Lender granting a participating Lendertypical participation), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the LenderW-8IMY, accompanied by a Form W-8ECI, Form W-8BEN, Form W-8BEN-E, a U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, W-9 and/or any other required information (or successor or other applicable form) certification documents from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (owner, as applicable; provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), ) and one or more direct or indirect partners beneficial owners of such Non-U.S. Lender are claiming the portfolio interest exemptionex- emption, the such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)beneficial owner(s); or and
(ivii) deliver to the Borrower and the Administrative Agent two accurate and complete original signed further copies of any other such form prescribed or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete, and after the occurrence of any event requiring a change in the most recent form previously delivered by applicable U.S. federal income tax law it to the Borrower and the Administrative Agent.
(including the Treasury Regulationse) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Each Lender that is a United States person, as defined in U.S. person within the meaning of Section 7701(a)(30) of the Code, Code shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it such Lender becomes a party to Lender under this Agreement (and from time to time thereafter as prescribed by applicable law, on or before the date that any such form or certification expires or becomes obsolete, and after the occurrence of any event involving the Lender requiring a change in the most recent form previously delivered by it or upon the request of the Borrower or the Administrative Agent) two accurate duly executed and complete original signed properly completed copies of either (x) Internal Revenue Service Form W-9, W-9 or any applicable successor form, form certifying that it is not subject to backup withholding.
(f) 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 is exempt from United States federal backup withholding were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Administrative Agent and the Administrative AgentBorrower, at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Administrative Agent or the Administrative AgentBorrower, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Agent or the Administrative Agent Borrower as may be necessary for the Borrowers Administrative Agent and the Administrative Agent Borrower to comply with their respective obligations (including any applicable reporting requirements) under FATCA, FATCA and to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and or to determine, if necessary, determine the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentencepayment, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Dateif any.
(dg) Notwithstanding If the Borrower determines in good faith that a reasonable basis exists for contesting any other provision of Indemnified Taxes for which indemnification has been made hereunder, the relevant Lender or the Administrative Agent, as applicable, shall use reasonable efforts to cooperate with the Borrower in challenging such taxes at the Borrower’s expense if so requested by the Borrower in writing; provided that nothing in this Section 4.01, a Lender 5.4(g) shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If obligate the Administrative Agent or any Lender determinesto take any action that, in its sole discretion exercised in good faithreasonable judgment, that it has received would be materially disadvantageous to such person. If any Lender or the Administrative Agent, as applicable, receives a refund of any an Indemnified Taxes or Other Taxes as to Tax for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal to sole good faith judgment of such refund (but only to the extent of indemnity payments made, Lender or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such LenderAgent, as the case may be, and is attributable to such payment made by the Borrower, then the Lender or the Administrative Agent, as the case may be, shall reimburse the Borrower for such amount (without interest (other than any interest paid received by the relevant Governmental Authority with respect to such refund)) as the Lender or Administrative Agent, as the case may be, determines to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse net after-tax position than it would have been in if the Indemnified Taxes giving rise to such refund had not been imposed in the first instance; provided that the relevant Credit PartyBorrower, upon the request of the Administrative Agent or such Lender, agrees agree to repay the amount paid over to such Credit Party the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate Neither a Lender nor the Administrative Agent or any Lender shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations to the Borrower in connection with this paragraph (g) or any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 5.4.
(gh) For the avoidance The agreements of doubt, for purposes of any Credit Party in this Section 4.01, 5.4 shall survive the term "Lender" shall include any Issuing Bank termination of the Credit Documents and any Swingline Lenderthe payment of the Loans and all other amounts payable hereunder.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Subsidiary Guarantor under this Agreement or any Credit other Loan Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes; provided that if the Borrower, except as required by any Subsidiary Guarantor, the Administrative Agent or any other applicable Requirements of Law. If any Taxes are withholding agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Subsidiary Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 4.012.17) have been madethe Administrative Agent, the Lender (Collateral Agent or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Subsidiary Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Subsidiary Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copies copy of tax receipts an official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower or such Subsidiary Guarantor showing payment thereof. Without duplication, after any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 2.17, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent. , as the case may be.
(b) The Credit Parties jointly Borrower shall timely pay and severally agree, to shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and reimburse hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.012.17), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested by information as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(ce) Without limiting the generality of Section 2.17(d), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally eligible to do so:
(I1) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or Agent, prior to the date on which it becomes a party the first payment to this Agreementthe Non-U.S. Lender is due hereunder, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, United States Internal Revenue Service Form W-8BEN (or any applicable successor form) (together with a certificate substantially in the form of Exhibit C F-1, Exhibit F-2, Exhibit F-3 or Exhibit F-4 hereto, as applicable (any a “Non-Bank Tax Certificate”), representing that such certificateNon-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a "U.S. Tax Compliance Certificate"“10 percent shareholder” (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower (within the meaning of Section 864(d)(4) of the Code) and two accurate and complete original signed copies the interest payments in question are not effectively connected with the conduct by such Lender of a trade or business within the United States), (B) Internal Revenue Service Form W-8BEN or W-8BEN-E Form W-8ECI (or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (iiiC) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or any applicable successor form) of and all necessary attachments (including the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information forms described in clauses (or successor or other applicable formA) from each beneficial owner and (B) above; provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect of the partners are is claiming the portfolio interest exemptiontreatment, the U.S. Non-Bank Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such direct or indirect partner(s)); partners) or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, U.S. in United States federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to such Lender under permit the Credit DocumentsBorrower to determine the withholding or deduction required to be made; and and
(y2) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent. Any Non-U.S. Lender that becomes legally ineligible to update any form or certification previously delivered shall promptly notify the Borrower and the Administrative Agent in writing of such Non-U.S. Lender’s inability to do so. Each Person that shall become a Participant pursuant to Section 9.06 or a Lender pursuant to Section 9.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 2.17(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, to the extent it is legally eligible to do so, each Agent shall deliver to the Borrower (x)(I) prior to the date on which it the first payment by the Borrower is due hereunder or (II) prior to the first date on or after the date on which such Agent becomes a party successor Agent pursuant to Section 8.09 on which payment by the Borrower is due hereunder, as applicable, two copies of a properly completed and executed IRS Form W-9 certifying its exemption from U.S. Federal backup withholding or a properly completed and executed applicable IRS Form W-8 certifying its non-U.S. status and its entitlement to any applicable treaty benefits, and (y) on or before the date on which any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of such documentation.
(f) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion, that it had received a refund of an Indemnified Tax or Other Tax for which a payment has been made by the Borrower or any Subsidiary Guarantor pursuant to this AgreementAgreement or any other Loan Document, which refund in the good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such payment made by the Borrower or any Subsidiary Guarantor, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Subsidiary Guarantor for such amount (net of all reasonable out-of-pocket expenses of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the Borrower or such Subsidiary Guarantor, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower or such Subsidiary Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). A Lender, the Administrative Agent or the Collateral Agent shall claim any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Party in connection with this clause (f) or any other provision of this Section 2.17.
(g) If the Borrower determines that a reasonable basis exists for contesting an Indemnified Tax or Other Tax for which a Credit Party has paid additional amounts as indemnification payments, each affected Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 2.17(g). Nothing in this Section 2.17(g) shall obligate any Lender or Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(h) Each U.S. Lender shall deliver to the Borrower and the Administrative Agent two accurate and complete original signed copies of Internal Revenue Service Form W-9, Forms W-9 (or any substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such U.S. Lender is exempt from United States federal backup withholding (i) on or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver prior to the Company Effective Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the U.S. Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender or any Agent under this Agreement or any other Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Agent 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), such Lender or such Agent 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 Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender's ’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 2.17(i), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of any Credit Party Debtor under any Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Indemnified Taxes, except as required by applicable Requirements of Law. If ; but if the Borrower or any Taxes are Guarantor or the Agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the Borrower or such Guarantor or the Agent shall make such deductions or withholdings as are reasonably determined by the Borrower, such Guarantor or the Agent to be required by any applicable Requirement of Law, (ii) the Borrower, such Guarantor or the Agent, as applicable, shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that that, after making all required deductions or and withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings on account of Indemnified Taxes been made. Whenever any Indemnified Taxes are payable by the Borrower or such Guarantor, (ii) as promptly as possible thereafter, the applicable withholding agent will make such deductions Borrower or withholdings, and (iii) the applicable withholding agent Guarantor shall timely pay the full amount deducted or withheld send to the relevant Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower or such Guarantor showing payment thereof. After any payment of Taxes by any Debtor or the Agent to a Governmental Authority. In additionAuthority as provided in this Section 5.4, the Credit Parties Borrower shall deliver to the Agent or the Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Agent, as the case may be.
(b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen (15) Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent or such Lender or required to be deducted or withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes as the case may be (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; but no indemnification payment shall be due under this Section 5.4 to the extent such payment is duplicative of any payment made by a Debtor under any other provision of this Agreement or under any other Credit Document. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by the Administrative Agent or a Lender (with a copy to the Agent) or by the Administrative Agent (as applicable) on its own behalf or on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Requirements of Law and such other reasonably requested by information as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made under any Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Debtor pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than the documentation set forth in Section 4.01(c5.4(e), (h) and (i)) expiredshall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of Section 5.4(d), any Non-U.S. Lender shall, to the foregoingextent it is legally entitled to do so, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent (in such number of copies as shall be requested by the Borrower or the Agent) on or prior to before the date on which it such Non-U.S. Lender becomes a party Lender under this Agreement (and from time to this Agreementtime thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable:
(i) two accurate and complete original signed copies in the case of (A) Internal Revenue Service Form W-8BEN or W-8BENa Non-E (or successor form) U.S. Lender claiming eligibility for the benefits of an income tax treaty to which the United States is a party or (Bx) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (interest under any such certificateCredit Document, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any applicable successor form) 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 applicable payments under any Credit Document, Internal Revenue Service Form W-8BEN or W-8BEN-E (or any applicable successor form) 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 IRS Form W-8ECI (or any applicable successor form);
(iii) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any applicable successor form); or
(iiiiv) to the extent a Non-U.S. Lender is not the beneficial owner (for exampleowner, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies executed originals of Internal Revenue Service Form W-8IMY (or any applicable successor form) of the Lender), accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, Form W-8BEN or W-8BEN-EE (or any applicable successor form), a U.S. Tax Compliance Certificate, Internal Revenue Service Form W-9, Form W-8IMYW-9 (or any applicable successor form), and/or any other required information (or successor or other applicable form) certification documents from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided thatowner, as applicable; but if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one (1) or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, the such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate may be provided by such Lender on behalf of each such direct or and indirect partner(s))partner; or and
(ivv) two accurate and complete original signed (2) further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete, inaccurate or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower, and from time to time thereafter if reasonably requested by the Borrower and the Agent; unless in any such case any Change in Law has occurred before the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it and such Non-U.S. Lender promptly so advises the Borrower and the Agent. Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e); but in the case of a Participant, such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(f) If any Lender or the Agent, as applicable, determines, in its sole discretion, that it had received and retained a refund (or the monetary benefit of a credit in lieu of a refund) of an Indemnified Tax for which a payment has been made by the Borrower or any Guarantor pursuant to any Credit Document, which refund (or credit) in the good faith judgment of such Lender or the Agent, as the case may be, is attributable to such payment made by the Borrower or any Guarantor, then such Lender or the Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all out-of-pocket expenses of such Lender or the Agent, as the case may be, and without interest other form prescribed by applicable U.S. federal income tax law than any interest received thereon from the relevant Governmental Authority with respect to such refund (including the Treasury Regulationsor credit)) as a basis for claiming a complete exemption fromsuch Lender or the Agent, as the case may be, determines in its sole discretion to be the proportion of the refund (or a reduction incredit) as will leave it, U.S. federal withholding Tax after such reimbursement, in no better or worse position (taking into account expenses or any taxes imposed on the refund (or credit)) than it would have been in if the payment had not been required; but the Borrower or such Guarantor, upon the request of such Lender or the Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any payments penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender under or the Credit Documents; Agent in the event such Lender or the Agent is required to repay such refund (or credit) to such Governmental Authority. In such event, such Lender or the Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund (or credit) received from the relevant Governmental Authority (but such Lender or the Agent may delete any information therein that it deems confidential). Each Lender and the Agent shall claim any refund (yor credit) that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. No Lender nor the Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Debtor in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or the Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and the Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 5.4(g). Nothing in this Section 5.4(g) shall obligate any Lender or the Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(h) The Agent, and each Lender that is a United States person, as defined in person under Section 7701(a)(30) of the CodeCode (each such Lender, a “U.S. Lender”), shall deliver to the U.S. Parent Borrower and and, as applicable, to the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of (2) Internal Revenue Service Form W-9, Forms W-9 (or any substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender Person is exempt from United States federal backup withholding (i) on or before the Interim Facility Effective Date (yor on or before the date it becomes a party to this Agreement), (ii) an on or before the date that such form expires or becomes obsolete, inaccurate or invalid, (iii) after the occurrence of a change in such Person’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and, as applicable, to the Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or, as applicable, the Agent.
(i) If a payment made to any Lender or the Agent under any Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Person were to fail to comply with the applicable Internal Revenue Service Form W-8 certifying reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender's non-U.S. status. A Lender Person shall deliver to the Company Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether that such Lender Person has or has not complied with such Lender's Person’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.4(i), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the suchthe Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) solely with respect to the U.S. Subfacilities: (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers and Dutch Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Restatement Agreement (SunOpta Inc.)
Net Payments. (a) All payments made by or on account of any Credit obligation of any Loan Party under any Credit Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments under any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for, or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires an applicable Withholding Agent to deduct or withhold any Tax from any payment by or on account of any obligation of any Loan Party under any Loan Document, then the applicable Requirements of Law Withholding Agent shall make such deduction or withholding and shall timely pay the full amount deducted or withheld to be withheld or deducted by any the relevant Governmental Authority in accordance with applicable withholding agent from such paymentslaw and, (i) to the extent such deduction or withholding Tax is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by then the applicable Credit Loan Party shall pay such additional amounts as necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01) have been made4.7(a)), the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives applicable Recipient receives, in aggregate, an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made, (ii) . Each Loan Party shall deliver to Administrative Agent within 30 days after it has made any such payment to the applicable withholding agent will make Governmental Authority an original or certified receipt issued by such deductions Governmental Authority (or withholdings, and (iiiother evidence reasonably satisfactory to Administrative Agent) evidencing the applicable withholding agent shall timely pay the full amount payment to such Governmental Authority of all amounts so required to be deducted or withheld to the relevant Governmental Authority. In addition, the Credit from such payment.
(b) The Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements law, or at the option of Law. As soon as practicable after Administrative Agent timely reimburse it for the payment of of, any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Taxes.
(c) The Loan Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and shall severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each LenderRecipient, within 10 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 4.7) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Borrower of any indemnification claim under this Section 4.7(c) within 120 days after such Recipient has received written notice of the claim of a Governmental Authority giving rise to such indemnification claim, the Loan Parties shall not be required to indemnify such Recipient for any incremental interest or penalties resulting from such Recipient’s failure to notify the applicable Borrower within such 120-day period. A certificate delivered to the applicable Borrower (showing in reasonable detail the basis for such calculation) as to the amount of such payment or liability prepared in good faith and delivered by the a Recipient (with a copy to Administrative Agent or Lender (or by the if such Recipient is not Administrative Agent on behalf of a Lender) shall be conclusive Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(bi) Any Subject to Section 4.7(e), each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or such times as are reasonably requested by the Borrowers such Borrower or the Administrative Agent, such properly completed and executed any documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by the Borrowers such Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate ofreduction in, any withholding Tax. In addition, each Tax with respect to any payments to be made to such Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time under any Loan Document or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law otherwise required or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent necessary to determine whether establish such Lender is subject to backup Lender’s status for withholding tax or information reporting requirementspurposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.01(c)4.7(d) or (e) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agentapplicable withholding agent) or promptly notify the Borrowers such Borrower and the Administrative Agent in writing of its inability to do so. 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 4.7(d)(ii)(A), (B) and (C) below or of any documentation requested pursuant to clause (d)(iii) 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.
(cii) Without limiting the generality of the foregoing, with respect to each Lender receiving payments in respect of any Loans, Letters of Credit, or Commitments provided to U.S. Borrower:
(I) (xA) each Lender that is not such Lender, other than a United States person (as such term is defined in Section 7701(a)(30) of the Code) Non-U.S. Lender, shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to before the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed duly executed, properly completed originals or copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax,
(AB) Internal Revenue Service each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement, whichever of the following is applicable:
(I) duly executed, properly completed originals of IRS Form W-8BEN or W-8BEN-E (or any successor form) thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party or party;
(BII) Internal Revenue Service duly executed, properly completed originals of IRS Form W-8ECI or any successor thereto;
(or successor form); (iiIII) in the case of a Non-U.S. Lender claiming the benefits of the exemption from U.S. federal withholding Tax for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest," Code, (x) a certificate (a “U.S. Tax Compliance Certificate”), in substantially in the form of Exhibit C 4.7(d)-1, to the effect that (any i) such certificateNon-U.S. Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a "“10 percent shareholder” of U.S. Tax Compliance Certificate"Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and two accurate (ii) interest payments on the Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business, and complete original signed (y) duly executed, properly completed copies of Internal Revenue Service IRS Form W-8BEN or W-8BEN-E E;
(or successor form); (iiiIV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies duly executed, properly completed originals of Internal Revenue Service IRS Form W-8IMY (W-8IMY, or any successor form) thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9Certificate substantially in the form of Exhibit 4.7(d)-2 or Exhibit 4.7(d)-3, Form W-8IMY, and/or or any other required information (information, or any successor or other applicable form) forms, from each beneficial owner that would be required under this Section 4.01(c4.7(d) if such beneficial owner were a Lender Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax tax purposes (and not a participating Lender), and one or more direct or indirect partners beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-4 may be provided by such Non-U.S. Lender on behalf of such direct beneficial owners, provided such certificates are duly executed and properly completed originals), or indirect partner(s)); or (iv) two accurate and complete original signed copies 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 U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any payments Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender under were to fail to comply with the Credit Documents; and applicable reporting requirements of FATCA (yincluding those contained in Sections 1471(b) each Lender that is a United States person, as defined in Section 7701(a)(30or 1472(b) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agentas applicable), on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company U.S. Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as may be necessary for the Borrowers and the U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender or Issuing Lender has complied with such Lender's ’s obligations under FATCA and or to determinedetermine or, if necessary, to determine the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis clause (C), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) date of this Agreement. Notwithstanding any other provision of this Section 4.014.7(d), a Lender shall not be required to deliver any documentation form that such Lender is not legally eligible to deliver.
(eiii) Each Lender hereby authorizes The Administrative Agent (acting in the name of and on behalf of the applicable Lenders) shall, upon written request by O-I Mexico, deliver to O-I Mexico: (A) a tax invoice evidencing any payment made by O-I Mexico under this Agreement or any other Loan Document pursuant to the Mexican Federal Fiscal Code and rule 2.7.1.16 of the MTR (or any successor provision thereof) and any other applicable Mexican tax provision (which invoice shall be in substantially the form set forth in Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and O-I Mexico, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders); and (B) in the case of any interest that has accrued with respect to any Multicurrency Revolving Loan made to O-I Mexico but which has not and will not become payable prior to December 31st of any given calendar year, a tax invoice for such unpaid but accrued interest (which invoice shall be substantially in the form of Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and O-I Mexico, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders). Any tax invoice issued pursuant to clause (B) of the immediately preceding sentence shall not be considered in any case as a payment receipt and any such tax invoice shall not (subject to any requirements of applicable law) generate any withholding obligation on the part of O-I Mexico at its issuance date. If and to the extent that a payment of interest occurs with respect to interest that was the subject of a tax invoice issued pursuant to clause (B) of the second preceding sentence, O-I Mexico shall be entitled to request a tax invoice for such payment pursuant to clause (A) of the second preceding sentence and such second tax invoice shall constitute evidence for such payment and (subject to any requirements of applicable law) shall give rise to a withholding obligation on the part of O-I Mexico for the amount of such interest. Any failure or delay on the part of the Administrative Agent to deliver any tax invoice pursuant to this clause (iii) (or any inaccuracy or deficiency in any such tax invoice) shall not affect the Credit Parties obligations of O-I Mexico under this Agreement and to any successor Administrative Agent any documentation provided by such Lender to the other Loan Documents (including, without limitation, its obligations under Sections 4.7(a) or 4.7(c)). The Lenders shall provide the Administrative Agent with any tax information reasonably requested by it to enable it to complete any tax invoice requested pursuant to Section 4.01(bthis clause (iii). O-I Mexico shall provide the Administrative Agent with any tax information of O-I Mexico reasonably requested by it and at disposal of O-I Mexico to enable it to complete any tax invoice requested pursuant to this clause (iii).
(e) Each Agent, Lender, Documentation Agent and Arranger will cooperate with O-I Australia, and will do or provide such other things as may be reasonably requested from time to time by O-I Australia, to demonstrate that the requirements of section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of Australia) were satisfied in relation to the issues of Tranche B Term Loans and Revolving Loans made to O-I Australia and Notes issued by O-I Australia under this Agreement, so that payment of interest under each of the above-mentioned Loans will be exempt from withholding tax under the Income Tax Assessment Act of 1936 (Commonwealth of Australia). Non-compliance by any Arranger or Documentation Agent with this paragraph shall not relieve O-I Australia of its obligations under Sections 4.7(a) or 4.01(c4.7(c).
(f) If Each Lender under the Administrative Agent Tranche C Term Loan Facility represents and warrants to O-I NZ that as of the Closing Date and on any date that any interest (or any payment deemed by applicable law to be interest) is payable in respect of the Tranche C Term Loans that if it receives any such payment under this Agreement subject to the New Zealand resident withholding tax rules, it holds an “RWT exemption certificate” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) or otherwise has exempt status in respect of New Zealand resident withholding tax. Non-compliance by any Lender determineswith this clause (f) shall not relieve O-I NZ of its obligations under Section 4.7(a).
(g) O-I NZ or any other Loan Party who makes a payment under this Agreement subject to the New Zealand non-resident withholding tax rules may at any time, and shall if requested by any Lender under the Tranche C Term Loan Facility:
(i) if permitted by applicable law, register as an “Approved Issuer” (as defined in its sole discretion exercised the New Zealand Income Tax Act 2007 (New Zealand)) and register this document with the New Zealand Inland Revenue Department under section 86H of the Stamp and Cheque Duties A▇▇ ▇▇▇▇ (New Zealand); and
(ii) in good faithrespect of each payment of interest (or any payment deemed by applicable law to be interest) in respect of the Tranche C Term Loans to a Lender that receives such payments subject to the New Zealand non-resident withholding tax rules, that it has received a refund make the relevant payment of “Approved Issuer Levy” (as defined in the Stamp and Cheque Duties Act 1971 (New Zealand)) in accordance with section 86K of the Stamp and Cheque Duties A▇▇ ▇▇▇▇ (New Zealand) in order to reduce (to the extent permitted by law) the applicable level of non-resident withholding tax to zero per cent.
(h) Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal attributable to such refund Lender (but only to the extent of indemnity payments made, or additional amounts paid, by that any Loan Party has not already indemnified Administrative Agent for such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by limiting the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request obligation of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.th
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Subsidiary Guarantor under this Agreement or any Credit other Loan Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes; provided that if the Borrower, except as required by any Subsidiary Guarantor, the Administrative Agent or any other applicable Requirements of Law. If any Taxes are withholding agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Subsidiary Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 4.012.17) have been madethe Administrative Agent, the Lender (Collateral Agent or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of Whenever any Indemnified Taxes or Other Taxes described in this Section 4.01 are payable by the Credit PartiesBorrower or such Subsidiary Guarantor, as promptly as possible thereafter, the Credit Parties will furnish Borrower or Subsidiary Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copies copy of tax receipts an official receipt (or other evidence acceptable to such Lender, acting reasonably) received by the Borrower or such Subsidiary Guarantor showing payment thereof. Without duplication, after any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 2.17, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent. , as the case may be.
(b) The Credit Parties jointly Borrower shall timely pay and severally agree, to shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and reimburse hold harmless the Administrative Agent, the Collateral Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.012.17), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested by information as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Loan Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(ce) Without limiting the generality of Section 2.17(d), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally eligible to do so:
(I1) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or Agent, prior to the date on which it becomes a party the first payment to this Agreementthe Non-U.S. Lender is due hereunder, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, United States Internal Revenue Service Form W-8BEN (or any applicable successor form) (together with a certificate substantially in the form of Exhibit C F-1, Exhibit F-2, Exhibit F-3 or Exhibit F-4 hereto, as applicable (any a “Non-Bank Tax Certificate”), representing that such certificateNon-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a "U.S. Tax Compliance Certificate"“10 percent shareholder” (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower (within the meaning of Section 864(d)(4) of the Code) and two accurate and complete original signed copies the interest payments in question are not effectively connected with the conduct by such Lender of a trade or business within the United States), (B) Internal Revenue Service Form W-8BEN or W-8BEN-E Form W-8ECI (or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (iiiC) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or any applicable successor form) of and all necessary attachments (including the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information forms described in clauses (or successor or other applicable formA) from each beneficial owner and (B) above; provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect of the partners are is claiming the portfolio interest exemptiontreatment, the U.S. Non-Bank Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such direct or indirect partner(s)); partners) or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, U.S. in United States federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to such Lender under permit the Credit DocumentsBorrower to determine the withholding or deduction required to be made; and and
(y2) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent. Any Non-U.S. Lender that becomes legally ineligible to update any form or certification previously delivered shall promptly notify the Borrower and the Administrative Agent in writing of such Non-U.S. Lender’s inability to do so. Each Person that shall become a Participant pursuant to Section 9.06 or a Lender pursuant to Section 9.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 2.17(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, to the extent it is legally eligible to do so, each Agent shall deliver to the Borrower (x)(I) prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, the first payment by the Borrower is due hereunder or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender prior to the Canadian Borrowers shall deliver to the Company and the Administrative Agent first date on or prior to after the date on which it such Agent becomes a party successor Agent pursuant to this Agreement Section 8.09 on which payment by the Borrower is due hereunder, as applicable, two accurate and complete original signed copies of either (x) Internal Revenue Service a properly completed and executed IRS Form W-9, or any successor form, W-9 certifying that such Lender is exempt its exemption from United States federal U.S. Federal backup withholding or a properly completed and executed applicable IRS Form W-8 certifying its non-U.S. status and its entitlement to any applicable treaty benefits, and (y) an applicable Internal Revenue Service Form W-8 certifying on or before the date on which any such Lender's non-U.S. status. A Lender shall deliver previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Company Borrower, and the Administrative Agent, at the from time or times to time if reasonably requested by the Borrowers or the Administrative AgentBorrower, two further copies of such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c)documentation.
(f) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faithdiscretion, that it has had received a refund of any an Indemnified Taxes Tax or Other Taxes as to Tax for which it a payment has been indemnified made by the Credit Parties Borrower or with respect to which a Credit Party has paid additional amounts any Subsidiary Guarantor pursuant to Section 4.01(a)this Agreement or any other Loan Document, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower or any Subsidiary Guarantor, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Subsidiary Guarantor for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyBorrower or such Subsidiary Guarantor, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to the Borrower or such Credit Party Subsidiary Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). A Lender, the Administrative Agent or the Collateral Agent shall claim any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to disclose make available its Tax tax returns (or any other information regarding relating to its Tax affairs or computations taxes that it deems confidential) to any Person Credit Party in connection with this clause (f) or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 2.17.
(g) For If the avoidance of doubtBorrower determines that a reasonable basis exists for contesting an Indemnified Tax or Other Tax for which a Credit Party has paid additional amounts as indemnification payments, for purposes of each affected Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 4.012.17(g). Nothing in this Section 2.17(g) shall obligate any Lender or Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(h) Each U.S. Lender shall deliver to the term "Borrower and the Administrative Agent two Internal Revenue Service Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such U.S. Lender is exempt from United States federal backup withholding (i) on or prior to the Effective Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the U.S. Lender" shall include ’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Issuing Bank and Lender or any Swingline Lender.Agent under this Agreement or any other Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Agent were to fail to comply with the applicable reporting requirements of
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Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings withholdingwithholdings (including deductions deductiondeductions or withholdings applicable to additional sums payable under this Section 4.015.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, subject to the provisions of the U.K Tax Schedule where the Borrower is a U.K. Borrower, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory Party. With respect to the Administrative Agent. The U.S. Subfacility and the U.S. FILO Subfacility, the U.S. Credit Parties jointly and severally agree, and with respect to the Canadian Subfacility and the Canadian FILO Subfacility, the Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.015.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the suchthe Administrative Agent or such Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Company or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reducereduced rate of, withholding Tax, including, where there is a U.K. Borrower, a passport under the HMRC DT Treaty Passport Scheme. In addition, each Lender shall deliver to the applicable Borrowers Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers Company or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Company or the Administrative Agent as will enable the Borrowers Company or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Company and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Company or the Administrative Agent) or promptly notify the Borrowers Company and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) solely with respect to the U.S. Subfacility or the U.S. FILO Subfacility or any borrowing by any U.S. Borrower under the Canadian Subfacility or the Canadian FILO Subfacility: (x) each U.S. Revolving Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower Company and the Administrative Agent Agent, on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); ) or, (ii) in the case of a Lender 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 C (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); ;, (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower Company and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup back-up withholding and (II) each Lender to the Canadian Borrowers and U.K. Borrowers, if any, shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup back-up withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's ’s non-U.S. status. A If any payment made to a Lender solely with respect to the U.S. Subfacility or the U.S. FILO Subfacility or any borrowing by any U.S. Borrower under the Canadian Subfacility or the Canadian FILO Subfacility 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), such Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers Company or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers and Company or the Administrative Agent to comply with their respective obligations under FATCA, to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.01(c), "“FATCA" ” shall include any amendment made to FATCA after the Second Restatement ClosingSecond Amendment Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit obligation of any Loan Party under any Credit Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments under any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for, or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires an applicable Withholding Agent to deduct or withhold any Tax from any payment by or on account of any obligation of any Loan Party under any Loan Document, then the applicable Requirements of Law Withholding Agent shall make such deduction or withholding and shall timely pay the full amount deducted or withheld to be withheld or deducted by any the relevant Governmental Authority in accordance with applicable withholding agent from such paymentslaw and, (i) to the extent such deduction or withholding Tax is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by then the applicable Credit Loan Party shall pay such additional amounts as necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01) have been made4.7(a)), the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives applicable Recipient receives, in aggregate, an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made, (ii) . Each Loan Party shall deliver to Administrative Agent within 30 days after it has made any such payment to the applicable withholding agent will make Governmental Authority an original or certified receipt issued by such deductions Governmental Authority (or withholdings, and (iiiother evidence reasonably satisfactory to Administrative Agent) evidencing the applicable withholding agent shall timely pay the full amount payment to such Governmental Authority of all amounts so required to be deducted or withheld to the relevant Governmental Authority. In addition, the Credit from such payment.
(b) The Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements law, or at the option of Law. As soon as practicable after Administrative Agent timely reimburse it for the payment of of, any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Taxes.
(c) The Loan Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and shall severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each LenderRecipient, within 10 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 4.7) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Borrower of any indemnification claim under this Section 4.7(c) within 120 days after such Recipient has received written notice of the claim of a Governmental Authority giving rise to such indemnification claim, the Loan Parties shall not be required to indemnify such Recipient for any incremental interest or penalties resulting from such Recipient’s failure to notify the applicable Borrower within such 120-day period. A certificate delivered to the applicable Borrower (showing in reasonable detail the basis for such calculation) as to the amount of such payment or liability prepared in good faith and delivered by the a Recipient (with a copy to Administrative Agent or Lender (or by the if such Recipient is not Administrative Agent on behalf of a Lender) shall be conclusive Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(bi) Any Subject to Section 4.7(e), each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or such times as are reasonably requested by the Borrowers such Borrower or the Administrative Agent, such properly completed and executed any documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by the Borrowers such Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate ofreduction in, any withholding Tax. In addition, each Tax with respect to any payments to be made to such Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time under any Loan Document or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law otherwise required or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent necessary to determine whether establish such Lender is subject to backup Lender’s status for withholding tax or information reporting requirementspurposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.01(c)4.7(d) or (e) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agentapplicable withholding agent) or promptly notify the Borrowers such Borrower and the Administrative Agent in writing of its inability to do so. 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 4.7(d)(ii)(A), (B) and (C) below or of any documentation requested pursuant to clause (d)(iii) 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.
(cii) Without limiting the generality of the foregoing, with respect to each Lender receiving payments in respect of any Loans, Letters of Credit, or Commitments provided to U.S. Borrower:
(I) (xA) each Lender that is not such Lender, other than a United States person (as such term is defined in Section 7701(a)(30) of the Code) Non-U.S. Lender, shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to before the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed duly executed, properly completed originals or copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax,
(AB) Internal Revenue Service each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement, whichever of the following is applicable:
(I) duly executed, properly completed originals of IRS Form W-8BEN or W-8BEN-E (or any successor form) thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party or party;
(BII) Internal Revenue Service duly executed, properly completed originals of IRS Form W-8ECI or any successor thereto;
(or successor form); (iiIII) in the case of a Non-U.S. Lender claiming the benefits of the exemption from U.S. federal withholding Tax for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest," Code, (x) a certificate (a “U.S. Tax Compliance Certificate”), in substantially in the form of Exhibit C 4.7(d)-1, to the effect that (any i) such certificateNon-U.S. Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a "“10 percent shareholder” of U.S. Tax Compliance Certificate"Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and two accurate (ii) interest payments on the Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business, and complete original signed (y) duly executed, properly completed copies of Internal Revenue Service IRS Form W-8BEN or W-8BEN-E E;
(or successor form); (iiiIV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies duly executed, properly completed originals of Internal Revenue Service IRS Form W-8IMY (W-8IMY, or any successor form) thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9Certificate substantially in the form of Exhibit 4.7(d)-2 or Exhibit 4.7(d)-3, Form W-8IMY, and/or or any other required information (information, or any successor or other applicable form) forms, from each beneficial owner that would be required under this Section 4.01(c4.7(d) if such beneficial owner were a Lender Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax tax purposes (and not a participating Lender), and one or more direct or indirect partners beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-4 may be provided by such Non-U.S. Lender on behalf of such direct beneficial owners, provided such certificates are duly executed and properly completed originals), or indirect partner(s)); or (iv) two accurate and complete original signed copies 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 U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any payments Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender under were to fail to comply with the Credit Documents; and applicable reporting requirements of FATCA (yincluding those contained in Sections 1471(b) each Lender that is a United States person, as defined in Section 7701(a)(30or 1472(b) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agentas applicable), on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company U.S. Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as may be necessary for the Borrowers and the U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender or Issuing Lender has complied with such Lender's ’s obligations under FATCA and or to determinedetermine or, if necessary, to determine the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis clause (C), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) date of this Agreement. Notwithstanding any other provision of this Section 4.014.7(d), a Lender shall not be required to deliver any documentation form that such Lender is not legally eligible to deliver.
(eiii) Each Lender hereby authorizes The Administrative Agent (acting in the name of and on behalf of the applicable Lenders) shall, upon written request by O-I Mexico, deliver to O-I Mexico: (A) a tax invoice evidencing any payment made by O-I Mexico under this Agreement or any other Loan Document pursuant to the Mexican Federal Fiscal Code and rule 2.7.1.16 of the MTR (or any successor provision thereof) and any other applicable Mexican tax provision (which invoice shall be in substantially the form set forth in Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and O-I Mexico, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders); and (B) in the case of any interest that has accrued with respect to any Multicurrency Revolving Loan made to O-I Mexico but which has not and will not become payable prior to December 31st of any given calendar year, a tax invoice for such unpaid but accrued interest (which invoice shall be substantially in the form of Exhibit 4.7(d)(iii) or such other form as may be reasonably agreed by the Administrative Agent and ▇-▇ ▇▇▇▇▇▇, which in any case shall include the relevant information related to interest owing or paid to each of the applicable Lenders and the tax information of each of the applicable Lenders). Any tax invoice issued pursuant to clause (B) of the immediately preceding sentence shall not be considered in any case as a payment receipt and any such tax invoice shall not (subject to any requirements of applicable law) generate any withholding obligation on the part of O-I Mexico at its issuance date. If and to the extent that a payment of interest occurs with respect to interest that was the subject of a tax invoice issued pursuant to clause (B) of the second preceding sentence, O-I Mexico shall be entitled to request a tax invoice for such payment pursuant to clause (A) of the second preceding sentence and such second tax invoice shall constitute evidence for such payment and (subject to any requirements of applicable law) shall give rise to a withholding obligation on the part of O-I Mexico for the amount of such interest. Any failure or delay on the part of the Administrative Agent to deliver any tax invoice pursuant to this clause (iii) (or any inaccuracy or deficiency in any such tax invoice) shall not affect the Credit Parties obligations of O-I Mexico under this Agreement and to any successor Administrative Agent any documentation provided by such Lender to the other Loan Documents (including, without limitation, its obligations under Sections 4.7(a) or 4.7(c)). The Lenders shall provide the Administrative Agent with any tax information reasonably requested by it to enable it to complete any tax invoice requested pursuant to Section 4.01(bthis clause (iii). O-I Mexico shall provide the Administrative Agent with any tax information of O-I Mexico reasonably requested by it and at disposal of O-I Mexico to enable it to complete any tax invoice requested pursuant to this clause (iii).
(e) Each Agent, Lender, Documentation Agent and Arranger will cooperate with O-I Australia, and will do or provide such other things as may be reasonably requested from time to time by O-I Australia, to demonstrate that the requirements of section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of Australia) were satisfied in relation to the issues of Tranche B Term Loans and Revolving Loans made to O-I Australia and Notes issued by O-I Australia under this Agreement, so that payment of interest under each of the above-mentioned Loans will be exempt from withholding tax under the Income Tax Assessment Act of 1936 (Commonwealth of Australia). Non-compliance by any Arranger or Documentation Agent with this paragraph shall not relieve O-I Australia of its obligations under Sections 4.7(a) or 4.01(c4.7(c).
(f) If Each Lender under the Administrative Agent Tranche C Term Loan Facility represents and warrants to O-I NZ that as of the Closing Date and on any date that any interest (or any payment deemed by applicable law to be interest) is payable in respect of the Tranche C Term Loans that if it receives any such payment under this Agreement subject to the New Zealand resident withholding tax rules, it holds an “RWT exemption certificate” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) or otherwise has exempt status in respect of New Zealand resident withholding tax. Non-compliance by any Lender determineswith this clause (f) shall not relieve O-I NZ of its obligations under Section 4.7(a).
(g) O-I NZ or any other Loan Party who makes a payment under this Agreement subject to the New Zealand non-resident withholding tax rules may at any time, and shall if requested by any Lender under the Tranche C Term Loan Facility:
(i) if permitted by applicable law, register as an “Approved Issuer” (as defined in its sole discretion exercised the New Zealand Income Tax Act 2007 (New Zealand)) and register this document with the New Zealand Inland Revenue Department under section 86H of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand); and
(ii) in good faithrespect of each payment of interest (or any payment deemed by applicable law to be interest) in respect of the Tranche C Term Loans to a Lender that receives such payments subject to the New Zealand non-resident withholding tax rules, that it has received a refund make the relevant payment of “Approved Issuer Levy” (as defined in the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand)) in accordance with section 86K of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand) in order to reduce (to the extent permitted by law) the applicable level of non-resident withholding tax to zero per cent.
(h) Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal attributable to such refund Lender (but only to the extent of indemnity payments made, or additional amounts paid, by that any Loan Party has not already indemnified Administrative Agent for such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by limiting the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request obligation of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.th
Appears in 1 contract
Net Payments. (a) All payments made by or on account behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for, for or on account of any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld from any amounts payable by or deducted by on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent from such payments, (i) shall be entitled to the extent make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and if such Tax is on account of an Indemnified Tax or Other a Non-Excluded Tax, the sum payable shall be increased by then the applicable Credit Party as shall increase the amounts payable to the applicable Recipient to the extent necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01Section) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) applicable Recipient receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), (ii) as soon as practicable thereafter, the applicable withholding agent will make such deductions Borrower shall send to the Administrative Agent the original or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to a certified copy of a receipt issued by the relevant Governmental Authority. In addition, a copy of the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesreturn reporting such payment, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, Lenders for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Non-Excluded Taxes (including any Indemnified Taxes and Other Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), ) that are paid by the Agent or Lender or that are required to be withheld or deducted from a payment to the Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or 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. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any Other Taxes. The agreements in this Section 5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b) as if it were a Lender; provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment 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,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS 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 applicable payments under any Credit Document, IRS Form W-8BEN or IRS 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;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. 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 L-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower 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 Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies 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 Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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), such 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 (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(i) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or the Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, shall repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require the Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver 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 Credit Parties and to Lender from any successor Administrative Agent other source against any documentation provided by such Lender amount due to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (e).
(fe) If Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund assignment of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments maderights by, or additional amounts paidthe replacement of, by such Credit Party under Section 4.01(a) with respect to a Lender, the Indemnified Taxes termination of the Commitments and the repayment, satisfaction or Other Taxes giving rise to such refund), net discharge of all reasonable out-of-pocket expenses (including obligations under any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionDocument.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement (ARKO Corp.)
Net Payments. (a) All Any and all payments made by by, on behalf of, or on an account of any Credit Party obligation of, the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by ; provided that if any applicable withholding agent shall be required by Applicable Law to deduct or withhold any Taxes from such payments, then (i) to the extent if such deduction or withholding Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the applicable Lender (or in the Administrative case of payments made to an Agent if the Administrative Agent receives the payment for its own account, such Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will shall make such deductions or withholdings, withholdings and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority within the time allowed and in accordance with Applicable Law. In additionWhenever any Taxes are payable by the Borrower or any Guarantor, as promptly as possible thereafter, the Credit Parties Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to the Administrative Agent, acting reasonably) received by the Borrower or such Guarantor evidencing payment thereof.
(b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements Authority, or at the option of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing reimburse the Administrative Agent for the payment of, any Other Taxes (whether or not such payment Other Taxes were correctly or legally imposed or asserted by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Lender that is entitled to an exemption from or reduction of withholding Tax Tax, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. A Lender’s obligation under the prior sentence shall apply only if the Borrower or the Administrative Agent has made a request for such documentation. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(cSections 5.4(e)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate"5.4(h) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii5.4(i) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor formbelow) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender is not legally eligible to deliver.
(e) any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Sections 5.4(d), 5.4(e), 5.4(h) and 5.4(i).
(e) Each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally eligible to do so:
(i) deliver to the Borrower and the Administrative Agent, prior to the date on which the first payment to the Non-U.S. Lender is due hereunder, two copies of (x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 4.01(b871(h) or 4.01(c881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit Q certifying that (1) such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, (2) such Non-U.S. Lender is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, (3) any interest payment received by such Non-U.S. Lender under this Agreement or any other Credit Document is not effectively connected with the non-U.S. Lender’s conduct of a trade or business in the United States and (4) such Non-U.S. Lender is not a controlled foreign corporation related to the Borrower (within the meaning of Section 881(c)(3)(C) of the Code)), (y)(1) Internal Revenue Service Form W-8BEN or Form W-8BEN-E, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower or any Guarantor under an applicable income tax treaty to which the United States is a party or (2) properly completed and duly executed Internal Revenue Service Form W-8ECI, or (z) if a Non-U.S. Lender does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where Non-U.S. Lender is a pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (including the forms described in clauses (x) and (y) above, as required), provided that if the Non-U.S. Lender is a partnership (and not a participating Lender), and one or more of the partners is claiming portfolio interest treatment, the certificate substantially in the form of Exhibit Q may be provided by such Non-U.S. Lender on behalf of such partner(s)), in each case properly completed and duly executed; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) in each case properly completed and duly executed on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. If in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall promptly so advise the Borrower and the Administrative Agent.
(f) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes Tax (including an Other Tax) for which a payment of additional amounts or Other Taxes as to which it indemnification payments has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)5.4, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave such Person, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the relevant Credit PartyBorrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Borrower pursuant to this Section 5.4(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent, as the case may be, in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate Upon reasonable request by the Borrower, a Lender, the Administrative Agent or the Collateral Agent shall claim any refund in respect of any Indemnified Tax or Other Tax for which a payment of additional amounts or indemnification payments has been made by the Borrower pursuant to this Section 5.4 that such Lender or Agent determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations to any Person Credit Party in connection with this clause (f) or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 5.4.
(g) For If the avoidance Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of doubtSection 2.12, for purposes of each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender5.
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Net Payments. (a) All Any and all payments made by by, on behalf of, or on an account of any Credit Party obligation of, the Borrower or any Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by ; provided that if any applicable withholding agent shall be required by Applicable Law to deduct or withhold any Taxes from such payments, then (i) to the extent if such deduction or withholding Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the applicable Lender (or in the Administrative case of payments made to an Agent if the Administrative Agent receives the payment for its own account, such Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will shall make such deductions or withholdings, withholdings and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority within the time allowed and in accordance with Applicable Law. In additionWhenever any Taxes are payable by the Borrower or any Guarantor, as promptly as possible thereafter, the Credit Parties Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (or other evidence acceptable to the Administrative Agent, acting reasonably) received by the Borrower or such Guarantor evidencing payment thereof.
(b) The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements Authority, or at the option of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing reimburse the Administrative Agent for the payment of, any Other Taxes (whether or not such payment Other Taxes were correctly or legally imposed or asserted by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Lender that is entitled to an exemption from or reduction of withholding Tax Tax, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. A Lender’s obligation under the prior sentence shall apply only if the Borrower or the Administrative Agent has made a request for such documentation. In addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent 139 to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(cSections 5.4(e)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate"5.4(h) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii5.4(i) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor formbelow) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender is not legally eligible to deliver.
(e) any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Sections 5.4(d), 5.4(e), 5.4(h) and 5.4(i).
(e) Each Non-U.S. Lender with respect to any Loan made to the Borrower shall, to the extent it is legally eligible to do so:
(i) deliver to the Borrower and the Administrative Agent, prior to the date on which the first payment to the Non-U.S. Lender is due hereunder, two copies of (x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax under Section 4.01(b871(h) or 4.01(c881(c) of the Code with respect to payments of “portfolio interest”, United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit Q certifying that (1) such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, (2) such Non-U.S. Lender is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, (3) any interest payment received by such Non-U.S. Lender under this Agreement or any other Credit Document is not effectively connected with the non-U.S. Lender’s conduct of a trade or business in the United States and (4) such Non-U.S. Lender is not a controlled foreign corporation related to the Borrower (within the meaning of Section 881(c)(3)(C) of the Code).), (y)
(1) Internal Revenue Service Form W-8BEN or Form W-8BEN-E, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding Tax on payments by the Borrower or any Guarantor under an applicable income tax treaty to which the United States is a party or (2) properly completed and duly executed Internal Revenue Service Form W-8ECI, or (z) if a Non-U.S. Lender does not act or ceases to act for its own account with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where Non-U.S. Lender is a pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (including the forms described in clauses (x) and (y) above, as required), provided that if the Non-U.S. Lender is a partnership (and not a participating Lender), and one or more of the partners is claiming portfolio interest treatment, the certificate substantially in the form of Exhibit Q may be provided by such Non-U.S. Lender on behalf of such partner(s)), in each case properly completed and duly executed; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) in each case properly completed and duly executed on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. If in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall promptly so advise the Borrower and the Administrative Agent. 140
(f) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes Tax (including an Other Tax) for which a payment of additional amounts or Other Taxes as to which it indemnification payments has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)5.4, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave such Person, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid; provided that the relevant Credit PartyBorrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Borrower pursuant to this Section 5.4(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent, as the case may be, in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate Upon reasonable request by the Borrower, a Lender, the Administrative Agent or the Collateral Agent shall claim any refund in respect of any Indemnified Tax or Other Tax for which a payment of additional amounts or indemnification payments has been made by the Borrower pursuant to this Section 5.4 that such Lender or Agent determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations to any Person Credit Party in connection with this clause (f) or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionprovision of this Section 5.4.
(g) For If the avoidance Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of doubtSection 2.12, for purposes of each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender5.
Appears in 1 contract
Sources: Credit Agreement (Talen Energy Corp)
Net Payments. (a) All Except as provided in this Section 3.15(a), all payments made by or on account behalf of any Credit Party the Borrower hereunder and under any Credit Loan Document shall will 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 TaxesTaxes with respect to such payments, except as unless required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from deducted, the Borrower or Guarantor, if applicable, agrees to pay the full amount of such payments, (i) Taxes to the extent relevant Governmental Authority and, if such Tax is an Indemnified Tax, such additional amounts to the recipient as may be necessary so that every payment of all amounts due under this Agreement or under any Loan Document will not be less than the amount provided for herein or in such Loan Document after withholding or deduction for or withholding is on account of an such Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings Taxes (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law3.15(a)). As soon as practicable after any payment of Taxes, but in no event later than 45 days after the date of the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit PartiesTaxes, the Credit Parties Borrower or Guarantors, if applicable, will furnish to the Administrative Agent certified copies of tax receipts the receipt issued by the relevant Governmental Authority evidencing such payment by the applicable Credit Party such Borrower or other evidence of such payment reasonably satisfactory to the Administrative AgentGuarantor. The Credit Parties jointly and severally agreeBorrower or Guarantors, if applicable, agree to indemnify and hold harmless the Administrative Agent and each Lender, and to reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, such Person for the full amount of any Indemnified Taxes so levied or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes imposed (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.013.15(a), ) and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental AuthorityAuthority and paid by such Person, within 10 days after written demand therefor. Notwithstanding the foregoing, Borrower and Guarantors shall not be required to indemnify the Administrative Agent or any Lender pursuant to this Section 3.15(a) for any Tax for which the Tax Indemnitee has received written notice from a taxing authority or has otherwise had knowledge of for more than 180 days prior to the date that such Lender or the Administrative Agent notifies the Borrower of the event that gives rise to such claim. A certificate as to the amount of such payment or liability prepared and the reasons therefor in good faith and reasonable detail (provided that such Lender shall not be required to disclose any price sensitive information, any confidential information or any information to the extent prohibited by law or regulation) delivered to the Borrower by a Lender (with a copy to the Administrative Agent or Lender (Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender) , shall be conclusive absent manifest error. The Borrower or Guarantor, if applicable, shall 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.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoingSection 3.15(c), (I) (x) each Lender and the Administrative Agent that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall for U.S. federal income tax purposes, agrees to deliver to the U.S. Parent Borrower and the Administrative Agent (or in the case of the Administrative Agent, to the Borrower) on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate accurate, complete and executed originals of Internal Revenue Service Form W 9. Each Lender and the Administrative Agent that 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 (each, a “Foreign Lender”) agrees to deliver to the Borrower and the Administrative Agent (or in the case of the Administrative Agent, to deliver to the Borrower) on or prior to the date it becomes a party to this Agreement, whichever of the following is applicable:
(i) two accurate, complete original signed and executed originals of Internal Revenue Service Form W 8-ECI, or any subsequent versions thereof or successors thereto;
(ii) two accurate, complete and executed originals of Internal Revenue Service Form W 8-BEN or Form W8-BEN-E or any subsequent versions thereof or successors thereto, certifying to such Person’s entitlement as of such date to a complete exemption from, or reduction of, United States withholding tax with respect to payments to be made under this Agreement and under any Note;
(iii) two accurate, complete and executed originals of Internal Revenue Service Form W 8IMY, or any subsequent versions thereof of successors thereto, and all required supporting documentation (including Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN (or W-8BEN-E), Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner); or
(iv) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code: (A) two executed certificates providing that such Foreign Lender is not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code; (2) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code; or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, which certificates shall be substantially in the form of Exhibit I (any such certificate, a “Non-Bank Certificate”) and (B) two accurate, complete and executed originals of Internal Revenue Service Form W 8BEN or Form W-8BENE (with respect to the portfolio interest exemption) (or any subsequent versions thereof or successors thereto) 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, the Administrative Agent and each Lender agrees that from time to time after the Closing Date, when a change in circumstances renders the previous certification inaccurate in any material respect, it will deliver to the Borrower and the Administrative Agent two new accurate, complete and executed copies of Internal Revenue Service Form W-9W-8ECI, Form W- 8IMY, Form W-8BEN or Form W-8BEN-E (with respect to the benefits of any income tax treaty), Form W-8BEN or Form W-8BEN-E (with respect to the portfolio interest exemption) and a Non- Bank Certificate, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, as the case may be (or any successor formsubsequent versions thereof or successors thereto), certifying that in order to confirm or establish its continued entitlement to a complete exemption from, or reduction of, United States withholding tax or backup withholding with respect to payments under this Agreement and any Note, or it shall promptly notify the Borrower and the Administrative Agent (if applicable) of its legal inability to deliver any such form or certificate.
(c) If any Lender or the Administrative Agent is entitled to an exemption from or reduction in withholding Tax with respect to payments under this Agreement and any Term Note, then such Lender and the Administrative Agent agree, to the extent it is exempt from United States federal backup legally entitled, pursuant to the applicable Requirement of Law in respect of Taxes, to do so, to deliver to the Borrower and the Administrative Agent upon request such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding.
(yd) an If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable Internal Revenue Service Form W-8 certifying reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, FATCA and to determine whether that such Lender has complied with such Lender's ’s obligations under FATCA and or to determine, if necessary, determine the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 3.15(d), "FATCA" FATCA shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes If the Administrative Agent Borrower or any Guarantor has paid an additional amount in respect of Indemnified Taxes to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determinespursuant to Section 3.15(a), paid any Other Taxes on behalf any such recipient pursuant to Section 3.15(a) or indemnified any such recipient for Indemnified Taxes pursuant to Section 3.15(a) hereof, then such recipient shall, at the expense of Borrower, cooperate in good faith with the Borrower in filing for and seeking any refunds of such Taxes. If the Borrower or Guarantor pays any additional amount or makes any indemnity payment under this Section 3.15 to a Lender or the Administrative Agent and such Lender or the Administrative Agent determines in its sole discretion exercised in good faith, faith that it has received a any refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties Borrower or with respect to which any Guarantor (a Credit Party has paid additional amounts pursuant to Section 4.01(a“Refund”), it such Lender or the Administrative Agent shall pay to the relevant Credit Party an amount equal to Borrower or Guarantor, as the case may be, such refund Refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party made under this Section 4.01(a) 3.15 with respect to the Indemnified Taxes or and Other Taxes giving rise to such refund), Refund) net of all reasonable out-of-out of pocket expenses (including any Taxes) in respect of the Administrative Agent or such Lender, as the case may be, Refund and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refundAuthority); provided that . Notwithstanding the relevant Credit Partyprior two sentences, upon the request of (i) any Lender or the Administrative Agent or such Lendermay determine, agrees in its sole discretion exercised in good faith consistent with its policies, whether to repay the amount paid over to such Credit Party seek a Refund; (plus ii) any Taxes, costs, penalties, interest or other charges that are imposed by the relevant Governmental Authority) to on a Lender or the Administrative Agent as a result of a disallowance or reduction of any Refund with respect to which such Lender in the event or the Administrative Agent has made a payment to the Borrower or the Guarantor pursuant to this Section 3.15(e) (and any interest or penalties imposed thereon) shall be treated as a Tax for which the Borrower or a Guarantor, as the case may be, is obligated to indemnify such Lender is required or the Administrative Agent pursuant to repay such refund to such Governmental Authority. Nothing this Section 3.15 without any exclusions or defenses; (ii) nothing in this Section 4.01(f3.15(e) shall be construed to obligate require any Lender or the Administrative Agent or any Lender to disclose or make available any confidential information to the Borrower or the Guarantor (including, without limitation, its Tax returns tax returns); (iii) no Lender or the Administrative Agent shall be required to pay any other information regarding its Tax affairs or computations amounts pursuant to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.013.15(e) at any time which an Event of Default exists (provided that such amounts shall be credited against amounts otherwise owed under this Agreement by the Borrower or a Guarantor); and (iv) notwithstanding anything to the contrary in this Section 3.15(e), in no event will the term "Lender" shall include Lender or Administrative Agent be required to pay any Issuing Bank and any Swingline Lenderamount to the Borrower or Guarantor the payment of which would place the Lender or Administrative Agent in a less favorable net after-Tax position than the Lender or Administrative Agent would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid.
Appears in 1 contract
Sources: Abl Credit and Guarantee Agreement (Janus International Group, Inc.)
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law law to be withheld or deducted by any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.015.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, subject to the provisions of the U.K Tax Schedule where the Borrower is a U.K. Borrower, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory Party. With respect to the Administrative Agent. The U.S. Subfacility and the U.S. FILO Subfacility, the U.S. Credit Parties jointly and severally agree, and with respect to the Canadian Subfacility and the Canadian FILO Subfacility, the Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.015.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or such Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Company or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax, including, where there is a U.K. Borrower, a passport under the HMRC DT Treaty Passport Scheme. In addition, each Lender shall deliver to the applicable Borrowers Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers Company or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Company or the Administrative Agent as will enable the Borrowers Company or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Company and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Company or the Administrative Agent) or promptly notify the Borrowers Company and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) solely with respect to the U.S. Subfacility or the U.S. FILO Subfacility or any borrowing by any U.S. Borrower under the Canadian Subfacility or the Canadian FILO Subfacility: (x) each U.S. Revolving Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower Company and the Administrative Agent Agent, on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , (ii) in the case of a Lender 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 C (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); , (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.01(c) if such beneficial owner were a Lender (provided that, that if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); ) or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower Company and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup back-up withholding and (II) each Lender to the Canadian Borrowers and U.K. Borrowers, if any, shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup back-up withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's ’s non-U.S. status. A If any payment made to a Lender solely with respect to the U.S. Subfacility or the U.S. FILO Subfacility or any borrowing by any U.S. Borrower under the Canadian Subfacility or the Canadian FILO Subfacility 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), such Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.or
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted from such payments by any applicable withholding agent from such paymentsagent, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.01), the each Lender (or or, in the case of a payment made to the Administrative Agent if the Administrative Agent receives the payment for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with Applicable Law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent certified within 45 days after the date the payment by any of them of any Taxes pursuant to this Section 5.01 copies of tax receipts receipts, or other evidence reasonably satisfactory to the Administrative Agent, evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.015.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or such Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reduce rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as will enable the Borrowers Lead Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Lead Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent) or promptly notify the Borrowers Lead Borrower and the Administrative Agent in writing of its inability legal ineligibility to do so. Each Lender hereby authorizes the Administrative Agent to deliver to the Lead Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant to this Section 5.01(b) or Section 5.01(c).
(c) Without limiting the generality of the foregoing, ,
(Ii) (x) each Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Lead Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this AgreementAgreement (and from time to time thereafter upon the reasonable request of the Lead Borrower or the Administrative Agent), (i) two accurate and complete original signed copies of whichever of the following is applicable:
(A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for the benefits of an income tax treaty to which the United States is a party or party;
(B) Internal Revenue Service Form W-8ECI (or successor form); ;
(iiC) in the case of a Lender 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 C (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); ;
(iiiD) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or or
(ivE) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and ;
(yii) each Each Lender that is a United States person, person (as such term is defined in Section 7701(a)(30) of the Code, ) shall deliver to the U.S. Parent Lead Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this AgreementAgreement (and from time to time thereafter upon the reasonable request of the Lead Borrower or the Administrative Agent), two accurate and complete original signed copies of Internal Revenue Service Form W-9, W-9 (or any successor form, ) certifying that such Lender is exempt from United States backup withholding;
(iii) If any payment made to a Lender under any Credit Document would be subject to U.S. federal withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that Tax imposed by FATCA if such Lender is exempt from United States federal backup withholding were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as may be necessary for the Borrowers and Lead Borrower or the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.01(c), "“FATCA" ” shall include any amendment made to FATCA after the Second Restatement Effective Closing Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any Credit other Loan Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by ; provided that if any applicable Requirements of Law. If any Taxes are Withholding Agent shall determine (in such Withholding Agent’s good faith discretion) that it is or may be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable Withholding Agent may make such deductions or withholdings as are determined by the applicable Withholding Agent in such Withholding Agent’s good faith discretion to be required by any applicable Requirement of Law,
(ii) the applicable Withholding Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and
(iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 4.012.17) have been madethe Administrative Agent, the Lender (Collateral Agent or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) . After any payment of Taxes by any Credit Party or the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld Administrative Agent to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant a Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described provided in this Section 4.01 by the Credit Parties2.17, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Lender under Governmental Authority evidencing such payment, a copy of any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on return required by law to report such payment or attributable other of the Bankruptcy Court acceptable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate Required Lenders as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest errordistribution.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Lender, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or a Lender (or by the Administrative Agent on behalf of a Lender) ), shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reduce rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Borrower or the Administrative Agent) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the Closing Date or, in the case of a Lender that is a Lender to the Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C C-1, C-2, C-3 or C-4 (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); ) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note, or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulationsregulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. United States federal withholding Tax on any payments to such Lender under the Credit DocumentsTax; and (y) each Each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to at the date on which it becomes a party to this Agreementtimes specified in Section 5.04(b), two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying form that such Lender Person is exempt from United States backup withholding and (II) each Lender entitled to the Canadian Borrowers shall deliver provide at such time, in order to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt qualify for an exemption from United States federal backup back-up withholding requirements; and (z) if any 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 Sections 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, at the time or times prescribed by applicable law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers and Borrower or the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender ▇▇▇▇▇▇ has complied with such Lender's ’s obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.04(c)(z), "“FATCA" ” shall include any amendment made to FATCA after the Second Restatement Effective Closing Date.
(d) . Notwithstanding any other provision of this Section 4.015.04, a Lender shall not be required to deliver any documentation form that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement (OCI Partners LP)
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted from such payments by any applicable withholding agent from such paymentsagent, then with respect to the U.S. Subfacility and the U.S. FILO Subfacility, the U.S. Credit Parties jointly and severally agree, and with respect to the Canadian Subfacility, the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.01), the each Lender (or or, in the case of a payment made to the Administrative Agent if the Administrative Agent receives the payment for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with Applicable Law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent certified within 45 days after the date the payment by any of them of any Taxes pursuant to this Section 5.01 copies of tax receipts receipts, or other evidence reasonably satisfactory to the Administrative Agent, evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory Party. With respect to the Administrative Agent. The U.S. Subfacility and the U.S. FILO Subfacility, the U.S. Credit Parties jointly and severally agree, and with respect to the Canadian Subfacility, theThe Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.015.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or such Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as required by applicable Requirements of Law. If ; provided that if the Borrower or any Taxes are Guarantor or the Administrative Agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings as are reasonably determined in good faith by the Borrower, such Guarantor or the Administrative Agent to be required by any applicable Requirement of Law, (ii) the Borrower, such Guarantor or the Administrative Agent, as applicable, shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after making all required deductions or and withholdings (including deductions or withholdings of Indemnified Taxes applicable to additional sums payable under this Section 4.015.4) have been made, the Lender (or the Administrative Agent if Agent, any Letter of Credit Issuer or any Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable practical after the any payment of Taxes by any Indemnified Taxes or Other Taxes described Credit Party to a Governmental Authority as provided in this Section 4.01 by the Credit Parties5.4, the Credit Parties will furnish Borrower shall deliver to the Administrative Agent certified copies a copy of tax receipts a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(b) The Credit Parties jointly Borrower shall timely pay and severally agree, to shall indemnify and hold harmless the Administrative Agent and each Lender, Lender with regard to any Other Taxes (whether or not such Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).
(c) The Borrower shall indemnify and reimburse hold harmless the Administrative Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, that the right to indemnification shall be subject to the notice requirements of Section 2.13. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender or the Administrative Agent (as applicable) on its own behalf or Lender (or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest error.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable law and such other reasonably requested by information and documentation as will permit the Borrowers Borrower or the Administrative Agent, certifying as the case may be, to determine (i) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (ii) if applicable, the required rate of withholding or deduction, and (iii) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(e)(i)(A), (e)(i)(B), (e)(i)(C), (h) expiredand (i) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of Section 5.4(d), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally entitled to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it the Non-U.S. Lender becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any applicable successor form) (together with a certificate in the form attached hereto as Exhibit I representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10% shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower (within the meaning of Section 864(d)(4) of the Code) and the interest payments in question are not effectively connected with the United States trade or business conducted by such Lender), (B) Internal Revenue Service Form W-8BEN, Form W-8BEN-E or Form W-8ECI (or any applicable successor form); , in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Borrower under this Agreement, (iiiC) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or any applicable successor form) of and all necessary attachments (including the Lenderforms described in clauses (A) and (B) above, accompanied as required) required by Form W-8ECIapplicable law or reasonably requested by the Administrative Agent or the Borrower, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (ivD) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, U.S. in United States federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower, and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent; unless in any such case any Change in Law has occurred prior to the date on which any such delivery would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it and such Non-U.S. Lender promptly so notifies the Borrower and the Administrative Agent. Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased.
(f) If any Lender or the Administrative Agent, as applicable, determines, in its sole discretion, that it has received and retained a refund of an Indemnified Tax for which a payment has been made by the Borrower or any Guarantor pursuant to this Agreement or any other Credit Document, which refund in the good faith judgment of such Lender or the Administrative Agent, as the case may be, is attributable to such payment made by the Borrower or any Guarantor, then such Lender or the Administrative Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all out-of-pocket expenses (including Taxes) of such Lender or the Administrative Agent, as the case may be, and without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as such Lender or the Administrative Agent, as the case may be, determines in its sole discretion to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the Borrower or such Guarantor, upon the request of such Lender or the Administrative Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any payments penalties, interest or other charges imposed by the relevant Governmental Authority) to such Lender under or the Administrative Agent in the event such Lender or the Administrative Agent is required to repay such refund to such Governmental Authority. No Lender nor the Administrative Agent shall be obliged to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Documents; Party in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or the Administrative Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and the Administrative Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 5.4(g). Nothing in this Section 5.4(g) shall obligate any Lender or the Administrative Agent to take any action that such Person, in its sole judgment, determines (yi) may result in a material detriment to such Person, (ii) may subject such Person to any material unreimbursed cost or expense, (iii) may materially prejudice the legal or commercial position of such Person, or (iv) that such Person is not legally entitled to take.
(h) The Administrative Agent and each Lender that is a United States person, as defined in person under Section 7701(a)(30) of the CodeCode (each, a “U.S. Lender”) shall deliver to the U.S. Parent Borrower and the Administrative AgentAgent two Internal Revenue Service Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Person is exempt from United States federal backup withholding (i) on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, (ii) on or any successor form, certifying before the date that such Lender is exempt from United States backup withholding and form expires or becomes obsolete or invalid, (IIiii) each Lender after the occurrence of a change in Person’s circumstances requiring a change in the most recent form previously delivered by it to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender or the Administrative Agent under this Agreement or any other Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Person 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), such Person 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 Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether that such Lender Person has or has not complied with such Lender's Person’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.4(i), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes Agreement. The Lenders and the Administrative Agent shall, to the extent they are legally entitled to do so, deliver to the Credit Parties Borrower (and to any successor Administrative Agent any documentation provided by such Lender the Lenders shall deliver to the Administrative Agent pursuant Agent) additional documentation on or before the date that any such previously delivered documentation under this Section 5.4(i) expires or becomes obsolete or invalid and after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to Section 4.01(b) or 4.01(c).
(f) If the Borrower and the Administrative Agent or any Lender determinesAgent, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as and from time to which it has been indemnified time thereafter if reasonably requested by the Credit Parties Borrower or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such LenderAgent, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionapplicable.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other (including any Indemnified Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as will enable the Borrowers Lead Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Lead Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent) or promptly notify the Borrowers Lead Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Lead 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 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN (or successor form) or Form W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (or successor form) or W-8BEN-E (or successor form)) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note; or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners beneficial owners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)beneficial owners); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Lead Borrower and the Administrative Agent, on or prior to at the date on which it becomes a party to this Agreementtimes specified in Section 5.04(b), two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying form that such Lender Person is exempt entitled to provide at such time, in order to qualify for an exemption from United States backup back-up withholding requirements; and (IIz) each if any payment made to a Lender under any Credit Document would be subject to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that U.S. federal withholding Tax imposed by FATCA if such Lender is exempt from United States federal backup withholding were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Lead Borrower and the Administrative Agent, at the time or times prescribed by applicable law and at such time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as may be necessary for the Borrowers and Lead Borrower or the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and or to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.04(c)(z), "“FATCA" ” shall include any amendment made to FATCA after the Second Restatement Effective Closing Date.
(d) . Notwithstanding any other provision of this Section 4.015.04, a Lender shall not be required to deliver any documentation form that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(fd) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a5.04(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a5.04(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (expenses, including any Taxes) , of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); , provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 5.04(d), in no event will the Administrative Agent or any Lender be required to pay any amount to any Credit Party pursuant to this Section 5.04(d) to the extent that such payment would place the Administrative Agent or such Lender in a less favorable position (on a net after-Tax basis) than such party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. Nothing in this Section 4.01(f5.04(d) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other (including any Indemnified Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as will enable the Borrowers Lead Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Lead Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent) or promptly notify the Borrowers Lead Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Lead 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 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN (or successor form) or Form W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (or successor form) or W-8BEN-E (or successor form)) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note; or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners beneficial owners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)beneficial owners); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Each Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes; provided that if the Borrower, except as required by any Guarantor or the Administrative Agent or any other applicable Requirements of Law. If any Taxes are withholding agent shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions or and withholdings have been made (including deductions or withholdings of Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section 4.015.4) have been madethe Administrative Agent, the Lender (Collateral Agent, or the Administrative Agent if applicable Lender, as the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. After any payment of Taxes by any Credit Party or the Administrative Agent to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(iib) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after , or at the payment option of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing timely reimburse it for, any Other Taxes (whether or not such payment Other Taxes were correctly or legally imposed or asserted by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of 15 Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest errorerror and shall constitute a required notice for purposes of Section 2.13.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation and such other information reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit the Borrower or the Administrative Agent, certifying as the case may be, to determine (A) whether or not any payments made hereunder or under any other Credit Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any entitlement of such Lender to an available exemption from, or a reduced rate reduction of, applicable Taxes in respect of any payments to be made to such Lender by any Credit Party pursuant to any Credit Document or otherwise to establish such Lender’s status for withholding Taxtax purposes in the applicable jurisdiction. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agentany Lender, at the time or times reasonably if requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in the preceding two sentences, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(e)(i)(A), (B) expiredand (C) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of Section 5.4(d), each Non-U.S. Lender with respect to any Loan made to the foregoingBorrower shall, to the extent it is legally eligible to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Lender becomes a party to Lender under this Agreement, (i) two accurate and complete original signed executed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding Tax tax under Section 871(h) or 881(c) of the Code with respect to payments of "“portfolio interest," ”, United States Internal Revenue Service (“IRS”) Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form) (together with a certificate (substantially in the form of Exhibit K hereto) representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c)(3)(A) of the Code, is not a “10-percent shareholder” (within the meaning of Section 881(c)(3)(B) of the Code) of the Borrower, is not a CFC related to the Borrower described in Section 881(c)(3)(C) of the Code) and the interest payments in question are not effectively connected with the conduct by such Lender of a trade or business within the United States), (B) IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any applicable successor form), in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. federal withholding tax on payments by the Borrower under this Agreement, (C) executed copies of IRS Form W-8ECI (or any successor form), (D) executed copies of IRS Form W-8IMY (or any applicable successor form) and all necessary attachments (including the forms described in clauses (A), (B) and (C) above, provided that if the Non-U.S. Lender is a partnership and not a participating Lender, and one or more of the partners is claiming portfolio interest treatment, a certificate substantially in the form of Exhibit C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate K hereto may be provided by such Non-U.S. Lender on behalf of such direct or indirect partner(s)); partners) or (ivE) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to such Lender under permit the Credit DocumentsBorrower to determine the withholding or deduction required to be made; and and
(yii) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent executed copies of any such form or certification (or any applicable successor form) promptly after such form or certification expires or becomes obsolete or invalid, after the occurrence of any event requiring a material change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent or promptly notify in writing the Borrower and the Administrative Agent of such non-U.S. Lender’s inability to do so. Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, to the extent it is legally eligible to do so, each Agent shall deliver to the Borrower (x) prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, the first payment by the Borrower is due hereunder or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender prior to the Canadian Borrowers shall deliver to the Company and the Administrative Agent first date on or prior to after the date on which it such Agent becomes a party successor Agent pursuant to this Agreement two accurate and complete original signed Section 12.9 on which payment by the Borrower is due hereunder, as applicable, executed copies of either (x) Internal Revenue Service IRS Form W-9, or any successor form, W-9 certifying that such Lender is exempt its exemption from United States federal U.S. Federal backup withholding or a properly completed and executed applicable IRS Form W-8 certifying its non-U.S. status and its entitlement to any treaty benefits and its status as a qualified intermediary or withholding foreign partnership, and (y) an applicable Internal Revenue Service Form W-8 certifying on or before the date on which any such Lender's non-U.S. status. A Lender shall deliver previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Company Borrower, and the Administrative Agent, at the from time or times to time if reasonably requested by the Borrowers or the Administrative AgentBorrower, two further copies of such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c)documentation.
(f) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has received a refund of any an Indemnified Taxes Tax or Other Taxes as to Tax for which it has been indemnified pursuant to this Section 5.4 (including by the Credit Parties or with respect to which a Credit Party has paid payment of additional amounts pursuant to this Section 4.01(a5.4), it then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall pay to reimburse the relevant Credit Party an Borrower or such Guarantor for such amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse net after-Tax position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyBorrower or such Guarantor, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to the Borrower or such Credit Party Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to disclose make available its Tax tax returns (or any other information regarding relating to its Tax affairs or computations taxes that it deems confidential) to any Person Credit Party in connection with this clause (f) or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes provision of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender5.4.
Appears in 1 contract
Sources: Credit Agreement (Vine Energy Inc.)
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements law (as determined in the good-faith discretion of Lawthe withholding agent). If any Indemnified Taxes or Other Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (ia) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable by the Credit Parties shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made4.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (iib) the applicable withholding agent will make such deductions or withholdings, and (iiic) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the any payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesto a Governmental Authority, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party Party, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other (including any Indemnified Taxes imposed on amounts payable under this Section 4.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender (with a copy to the Administrative Agent or Lender (Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender) , shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Performance Sports Group Ltd.)
Net Payments. (a) All payments made by the Parent or on account any Co-Borrower of any Credit Party under any Credit Document principal of, and interest on, the Loans and all other amounts payable hereunder shall be made free and clear of, of and without deduction for any present or withholding forfuture income, any stamp or other Taxes, except as required fees, duties, withholdings or other charges of any nature whatsoever imposed by applicable Requirements of Lawany taxing authority, other than Income Taxes (such non-excluded items being called "Charges"). If In the event that any Taxes are required by applicable Requirements of Law withholding or deduction from any payment to be made by the Parent or such Co-Borrower hereunder is required in respect of any Charges pursuant to any applicable law, rule or regulation, then the Parent or such Co-Borrower will:
(a) pay directly to the relevant authority the full amount required to be so withheld or deducted by any applicable withholding agent from such payments, deducted;
(ib) promptly forward to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if an official receipt or other documentation reasonably satisfactory to the Administrative Agent receives the evidencing such payment for its own accountto such authority; and
(c) receives an amount equal pay to the sum it Administrative Agent, for the account of the Lenders, such additional amount or amounts as is necessary to ensure that the net amount actually received by each Lender will equal the full amount such Lender would have received had no such deductions withholding or withholdings deduction been made, (ii) required. Upon the applicable withholding agent will make such deductions or withholdings, and (iii) request of the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers Parent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not organized under the laws of a United States person (as such term is defined in Section 7701(a)(30) jurisdiction other than the U.S. shall, prior to the due date of any payments under the Code) shall Loans or LC Obligations, execute and deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to about the first scheduled payment date on which it becomes in each calendar year, a party to this Agreement, two accurate and complete original signed copies of United States Internal Revenue Service Form W-94224 or Form 1001, as may be applicable (or any successor form), certifying that such Lender is exempt from United States backup withholding and (II) each Lender appropriately completed. Without prejudice to the Canadian Borrowers shall deliver to survival of any other agreement of the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, Parent hereunder or any successor formother document, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) agreements of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing Parent contained in this Section 4.01(f) shall be construed to obligate survive satisfaction of the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes Liabilities and termination of this Section 4.01, Agreement until the term "Lender" shall include any Issuing Bank and any Swingline Lendertermination of all statutes of limitations applicable thereto.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes; provided that if the Borrower, except as required by any Guarantor or Agent (such applicable Requirements of Law. If any Taxes are Person, the “applicable withholding agent”) shall be required by applicable Requirements of Law to be withheld deduct or deducted by withhold any applicable withholding agent Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law, and (iii) to the extent such withholding or deduction or withholding is required to be made on account of an Indemnified Tax Taxes or Other TaxTaxes, the sum payable by the Borrower or such Guarantor shall be increased by the applicable Credit Party as necessary so that after all required deductions and withholdings of Indemnified Taxes or withholdings Other Taxes have been made (including deductions or withholdings of Indemnified Taxes or Other Taxes applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) Recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made. After any payment of Taxes by any Credit Party or Agent to a Governmental Authority as provided in this Section 5.4, the Borrower shall deliver to the Administrative Agent or the Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.
(iib) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after , or at the payment option of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing timely reimburse it for, any Other Taxes (whether or not such payment Other Taxes were correctly or legally imposed or asserted by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. relevant Governmental Authority).
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen (15) Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent, the Collateral Agent or such Lender or required to Lender, as the case may be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.4), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to setting forth in reasonable detail the basis and calculation of the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender, the Administrative Agent or Lender the Collateral Agent (as applicable) on its own behalf or by the Administrative Agent on behalf of a Lender) Lender shall be conclusive absent manifest errorerror and shall constitute a required notice for purposes of Section 2.13.
(bd) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this paragraph, whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including other than such documentation set forth in paragraphs (e), (h) and (i) of this Section) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any specific documents required below in Section 4.01(c)) expired, obsolete material unreimbursed cost or inaccurate in any respect, deliver promptly to expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(ce) Without limiting the generality of Section 5.4(d), each Non-U.S. Lender shall, to the foregoing, extent it is legally eligible to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Lender becomes a party to Lender under this Agreement, (i) two accurate and complete original signed copies of of
(A) Internal Revenue Service Form W-8BEN or W-8BENin the case of a Non-E (or successor form) U.S. Lender claiming eligibility for 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 copies of IRS Form W-8BEN or IRS 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 applicable payments under any Credit Document, IRS Form W-8BEN or IRS 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;
(B) Internal Revenue Service executed copies of IRS Form W-8ECI W-8ECI;
(or successor form); (iiC) in the case of a Non-U.S. Lender claiming the benefits of the exemption from U.S. federal withholding Tax for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest," Code, (x) a certificate Non-Bank Tax Certificate substantially in the form of Exhibit C (any K-1 to the effect that such certificateNon-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a "U.S. Tax Compliance Certificate"“10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower as described in Section 881(c)(3)(C) of the Code and two accurate and complete original signed (y) executed copies of Internal Revenue Service IRS Form W-8BEN or W-8BENIRS Form W 8BEN-E E;
(or successor form); (iiiD) to the extent a Non-U.S. Lender is not the beneficial owner (for exampleowner, where executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a Non-Bank Tax Certificate substantially in the form of Exhibit K-2 or Exhibit K-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a Non-Bank Tax Certificate substantially in the U.S. Tax Compliance Certificate may be provided by such Lender form of Exhibit K-4 on behalf of each such direct or and indirect partner(s)); or partner;
(ivE) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on any payments tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made; provided, however, that such other form and supplementary documentation described in this clause (E) (other than forms and documentation also described in clauses (A), (B), (C) or (D)) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender under to any material unreimbursed cost or expense or would materially prejudice the Credit Documentslegal or commercial position of such Lender; and and
(yii) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the Borrower and the Administrative Agent two further copies of any such form or certification (or any applicable successor form) (A) promptly after such form or certification expires or becomes obsolete, invalid or inaccurate in any respect, (B) promptly after the occurrence of any change in the Non-U.S. Parent Lender’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, on and (C) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent, or promptly notify in writing the Borrower and the Administrative Agent of such Non-U.S. L▇▇▇▇▇’s legal inability to do so. Each Person that shall become a Participant pursuant to Section 13.6 or a Lender pursuant to Section 13.6 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.4(e), Section 5.4(h) and Section 5.4(i); provided that in the case of a Participant such Participant shall furnish all such required forms and statements to the Person from which the related participation shall have been purchased. In addition, each Agent shall deliver to the Borrower (x)(I) prior to the date on which it the first payment by the Borrower is due hereunder or (II) prior to the first date on or after the date on which such Agent becomes a party successor Agent pursuant to Section 12.9 on which payment by the Borrower is due hereunder, as applicable, two copies of either (i) a properly completed and executed IRS Form W-9 certifying its exemption from U.S. Federal backup withholding or (ii) a properly completed and executed IRS Form W-8ECI (with respect to any payments to be received on its own behalf) and IRS Form W-8IMY (certifying that it is either a “qualified intermediary” within the meaning of Treasury Regulation Section 1.1441-1(e)(5) that has assumed primary withholding obligations under the Code, including Chapters 3 and 4 of the Code, or a “U.S. branch” within the meaning of Treasury Regulation Section 1.1441-1(b)(2)(iv) that is treated as a U.S. person for purposes of withholding obligations under the Code) (with respect to any payments received by the Agent on the account of others), and (y) on or before the date on which any such previously delivered documentation expires or becomes obsolete or invalid, after the occurrence of any event requiring a change in the most recent documentation previously delivered by it to the Borrower, and from time to time if reasonably requested by the Borrower, two further copies of such documentation (or prompt notification in writing of its legal inability to do so).
(f) If any Lender, the Administrative Agent or the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has received a refund of an Indemnified Tax or Other Tax for which it has been indemnified pursuant to this AgreementSection 5.4 (including by the payment of additional amounts pursuant to this Section 5.4), two accurate then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower or such Guarantor for such amount (net of all reasonable out-of-pocket expenses of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, and complete original signed copies without interest other than any interest received thereon from the relevant Governmental Authority with respect to such refund) as the Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of Internal Revenue Service Form W-9the refund as will leave it, after such reimbursement, in no better or worse net after-Tax position (taking into account expenses or any taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the Borrower or such Guarantor, upon the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to the Borrower or such Guarantor (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental Authority. In such event, such Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of any notice of assessment or other evidence of the requirement to repay such refund received from the relevant Governmental Authority (provided that such Lender, the Administrative Agent or the Collateral Agent may delete any information therein that it deems confidential). A Lender, the Administrative Agent or the Collateral Agent shall claim any refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. No Lender nor the Administrative Agent nor the Collateral Agent shall be obliged to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Credit Party in connection with this clause (f) or any other provision of this Section 5.4.
(g) If the Borrower determines that a reasonable basis exists for contesting an Indemnified Tax or Other Tax for which a Credit Party has paid additional amounts or indemnification payments, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. The Borrower shall indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by such Person in connection with any request made by the Borrower pursuant to this Section 5.4(g). Nothing in this Section 5.4(g) shall obligate any Lender or Agent to take any action that such Person, in its sole judgment, determines may result in a material detriment to such Person.
(h) Each U.S. Lender shall deliver to the Borrower and the Administrative Agent two IRS Forms W-9 (or substitute or successor form), properly completed and duly executed, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such U.S. Lender is exempt from United States federal backup withholding (i) on or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver prior to the Company Effective Date (or on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete, invalid or inaccurate in any respect, (iii) after the occurrence of a change in the U.S. L▇▇▇▇▇’s circumstances requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and (iv) from time to time thereafter if reasonably requested by the Borrower or the Administrative Agent.
(i) If a payment made to any Lender or any Agent under this Agreement or any other Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender or such Agent 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), such Lender or such Agent 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 Borrowers Borrower or the Administrative Agent, Agent such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender's ’s obligations under FATCA and or to determinedetermine the amount, if necessaryany, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.4(i), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision date of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliverAgreement.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All Subject to Section 4.7(f), all payments made by or on account of any obligation of any Credit Party under any Credit Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments under any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Credit Party free and clear of, of and without deduction or withholding for, or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements law (as determined -114- in the good faith discretion of Law to be withheld or deducted by any an applicable withholding agent) requires an applicable withholding agent to deduct or withhold any Tax from any payment by or on account of any obligation of any Credit Party under any Loan Document, then the applicable withholding agent shall make such paymentsdeduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, (i) to the extent such deduction or withholding Tax is on account of an Indemnified Tax or Other Tax, then the sum payable shall be increased by the applicable Credit Party shall be increased as necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01) have been made4.7(a)), the applicable Lender (or or, in the Administrative case of any amount received by an Agent if the Administrative Agent receives the payment for its own account, the Agent) receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made, (ii) . Each Credit Party shall deliver to the Administrative Agent within 30 days after it has made any such payment to the applicable withholding agent will make Governmental Authority an original or certified receipt issued by such deductions Governmental Authority (or withholdings, and (iiiother evidence reasonably satisfactory to Administrative Agent) evidencing the applicable withholding agent shall timely pay the full amount payment to such Governmental Authority of all amounts so required to be deducted or withheld to the relevant Governmental Authority. In addition, the from such payment.
(b) The Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements law, or at the option of Law. As soon as practicable after Administrative Agent timely reimburse it for the payment of of, any Indemnified Taxes or Other Taxes described in this Taxes.
(c) Subject to Section 4.01 by the Credit Parties4.7(f), the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties shall jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each LenderRecipient, within 10 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 4.7) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Credit Party of any indemnification claim under this Section 4.7(c) within 120 days after such Recipient has received written notice of the specific tax assessment by a Governmental Authority giving rise to such indemnification claim, the Credit Parties shall not be required to indemnify such Recipient for any incremental interest or penalties resulting from such Recipient’s failure to notify the applicable Credit Party within such 120-day period. A certificate delivered to the applicable Credit Party (showing in reasonable detail the basis for such calculation) as to the amount of such payment or liability prepared in good faith and delivered by the a Recipient (with a copy to Administrative Agent or Lender (or by the if such Recipient is not Administrative Agent on behalf of a Lender) shall be conclusive Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(bi) Any Subject to Section 4.7(f), each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or such times as are reasonably requested by the Borrowers such Borrower or the Administrative Agent, such properly completed and executed any documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by the Borrowers such Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate ofreduction in, any withholding Tax. In addition, each Tax with respect to any payments to be made to such Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time under any Loan Document or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law otherwise required or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent necessary to determine whether establish such Lender is subject to backup Lender’s status for withholding tax or information reporting requirementspurposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.01(c4.7(d)) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agentapplicable withholding agent) or promptly notify the Borrowers such Borrower and the Administrative Agent in writing of its inability to do so.
(cii) Without limiting the generality of the foregoing, with respect to each Lender receiving payments in respect of any Loans, Letters of Credit, or Commitments provided to U.S. Borrower:
(I) (xA) each Lender that is not such Lender, other than a United States person (as such term is defined in Section 7701(a)(30) of the Code) Non-U.S. Lender, shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to before the date on which it becomes a party to this Agreement, two duly executed, properly completed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax,
(iB) two accurate each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and complete original signed Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement, whichever of the following is applicable:
(AI) Internal Revenue Service duly executed, properly completed originals of IRS Form W-8BEN or Form W-8BEN-E (E, as applicable, or any successor form) thereto, claiming eligibility for benefits of an income tax treaty to which the United States is a party or party;
(BII) Internal Revenue Service duly executed, properly completed originals of IRS Form W-8ECI or any successor thereto;
(or successor form); (iiIII) in the case of a Non-U.S. Lender claiming the benefits of the exemption from U.S. federal withholding Tax for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of "portfolio interest," Code, (x) a certificate certificate, in substantially in the form of Exhibit C 4.7(d), to the effect that (any i) such certificateNon-U.S. Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a "“10 percent shareholder” of U.S. Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (ii) interest payments on the Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate"”), and (y) and two accurate and complete original signed duly executed, properly completed copies of Internal Revenue Service IRS Form W-8BEN or Form W-8BEN-E E, as applicable;
(or successor form); (iiiIV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies duly executed, properly completed originals of Internal Revenue Service IRS Form W-8IMY (W-8IMY, or any successor form) thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN, Form W-8BEN-E, a U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or or any other required information (information, or any successor or other applicable form) forms, from each beneficial owner that would be required under this Section 4.01(c4.7(d) if such beneficial owner were a Lender Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax tax purposes (and not a participating Lender), and one or more direct or indirect partners beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such direct beneficial owners, provided such certificates are duly executed and properly completed originals), or indirect partner(s)); or (iv) two accurate and complete original signed copies 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 U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, from or a reduction in, in U.S. federal withholding Tax on duly completed together with such supplementary documentation as may be prescribed by applicable law to permit U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any payments Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender under were to fail to comply with the Credit Documents; and applicable reporting requirements of FATCA (yincluding those contained in Sections 1471(b) each Lender that is a United States person, as defined in Section 7701(a)(30or 1472(b) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agentas applicable), on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company U.S. Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as may be necessary for the Borrowers and the U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and or to determinedetermine or, if necessary, to determine the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis clause (C), "“FATCA" ” shall include any amendment amendments made to FATCA after the Second Restatement Effective Datedate of this Agreement.
(diii) Notwithstanding any other provision of this Section 4.014.7(d), a Lender shall not be required to deliver any documentation form that such Lender is not legally eligible to deliver.
(eiv) Each Lender hereby authorizes the Administrative each Agent to deliver to the Credit Parties and to any other Agent or successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to this Section 4.01(b) or 4.01(c4.7(d).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other (including any Indemnified Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as will enable the Borrowers Lead Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Lead Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent) or promptly notify the Borrowers Lead Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Lead 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 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN (or successor form) or Form W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.United
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit obligation of any Loan Party under any Credit Loan Document will be made without recoupment, setoff, counterclaim, or other defense. To the extent permitted by applicable law, all payments under any Loan Document (including, without limitation, payments on account of principal and interest, and fees) shall be made by or on account of any obligation of any Loan Party free and clear of, of and without deduction or withholding for, or on account of, any Taxes, except as required by applicable Requirements of Law. If any Taxes are required by applicable Requirements law (as determined in the good faith discretion of Law to be withheld or deducted by any an applicable withholding agent) requires an applicable withholding agent to deduct or withhold any Tax from any payment by or on account of any obligation of any Loan Party under any Loan Document, then the applicable withholding agent shall make such paymentsdeduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, (i) to the extent such deduction or withholding Tax is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by then the applicable Credit Loan Party shall pay such additional amounts as necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01) have been made4.7(a)), the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives applicable Recipient receives, in aggregate, an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made, (ii) . Each Loan Party shall deliver to the Administrative Agent within 30 days after it has made any such payment to the applicable withholding agent will make Governmental Authority an original or certified receipt issued by such deductions Governmental Authority (or withholdings, and (iiiother evidence reasonably satisfactory to Administrative Agent) evidencing the applicable withholding agent shall timely pay the full amount payment to such Governmental Authority of all amounts so required to be deducted or withheld to the relevant Governmental Authority. In addition, the Credit from such payment.
(b) The Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements law, or at the option of Law. As soon as practicable after Administrative Agent timely reimburse it for the payment of of, any Other Taxes.
(c) OI Europe shall only with respect to Indemnified Taxes imposed on it or Other Taxes described in this Section 4.01 attributable to any payments made by or on its behalf, and the Credit Parties, the Credit other Loan Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties shall jointly and severally agreeseverally, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each LenderRecipient, within 10 days of written request after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 4.7) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or Other legally imposed or asserted by the relevant Governmental Authority; provided, however, that if a Recipient does not notify the applicable Borrower of any indemnification claim under this Section 4.7(c) within 120 days after such Recipient has received written notice of the claim of a Governmental Authority giving rise to such indemnification claim, the Loan Parties shall not be required to indemnify such Recipient for any incremental interest or penalties resulting from such Recipient’s failure to notify the applicable Borrower within such 120-day period. A certificate delivered to the applicable Borrower (showing in reasonable detail the basis for such calculation) as to the amount of such payment by a Recipient (with a copy to Administrative Agent if such Recipient is not Administrative Agent), absent manifest error, shall be final, conclusive, and binding upon on all parties.
(i) Subject to Section 4.7(e), each Lender shall deliver to the applicable Borrower and Administrative Agent, at such times as are reasonably requested by such Borrower or Administrative Agent, any documentation prescribed by law or information required under any administrative policy or any relevant Governmental Authority, or reasonably requested by such Borrower or Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under any Loan Document or otherwise required or reasonably necessary to establish such Lender’s status for withholding tax or information reporting purposes in an applicable jurisdiction. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in this Section 4.7(d)) or information expired, obsolete or inaccurate in any material respect, deliver promptly to the applicable Borrower and Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the applicable withholding agent) or promptly notify such Borrower and Administrative Agent of its inability to do so. 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 4.7(d)(ii)(A), (ii)(B) and (ii)(C) 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, with respect to each Lender receiving payments in respect of any Loans, Letters of Credit, or Commitments provided to U.S. Borrower:
(A) each such Lender, other than a Non-U.S. Lender, shall deliver to U.S. Borrower and Administrative Agent on or before the date on which it becomes a party to this Agreement, two duly executed, properly completed originals or copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax,
(B) each such Lender that is a Non-U.S. Lender entitled under the Code or any applicable treaty to an exemption from or reduction of U.S. federal withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to U.S. Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement, whichever of the following is applicable:
(I) duly executed, properly completed originals of IRS Form W-8BEN or W-8BEN-E or any successor thereto claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(II) duly executed, properly completed originals of IRS Form W-8ECI or any successor thereto;
(III) in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate (a “U.S. Tax Compliance Certificate”), in substantially the form of Exhibit 4.7(d)-1, to the effect that (i) such Non-U.S. Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of U.S. Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (ii) interest payments on the Loans are not effectively connected with the Non-U.S. Lender’s conduct of a U.S. trade or business, and (y) duly executed, properly completed copies of IRS Form W-8BEN or W-8BEN-E;
(IV) to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), duly executed, properly completed originals of IRS Form W-8IMY, or any successor thereto, of the Non-U.S. Lender, accompanied by IRS Form W-9, Form W-8ECI, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-2 or Exhibit 4.7(d)-3, Form W-8IMY, or any other required information, or any successor forms, from each beneficial owner that would be required under this Section 4.7(d) if such beneficial owner were a Lender, as applicable (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender), and one or more beneficial owners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate substantially in the form of Exhibit 4.7(d)-4 may be provided by such Non-U.S. Lender on behalf of such beneficial owners, provided such certificates are duly executed and properly completed originals), or 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 U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made; or
(V) any other form prescribed by applicable requirements of U.S. federal income tax 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 U.S. Borrower and Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any Loan 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 Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to U.S. Borrower and Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by U.S. Borrower or Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by U.S. Borrower or Administrative Agent as may be necessary for U.S. Borrower or Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender or Issuing Lender has complied with such Lender’s obligations under FATCA or to determine or, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding any other provision of this Section 4.7(d), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.
(e) Each Agent, Lender, Documentation Agent and Arranger will cooperate with ACI, and will do or provide such other things as may be reasonably requested from time to time by ACI, to demonstrate that the requirements of section 128F of the Income Tax Assessment Act of 1936 (Commonwealth of Australia) were satisfied in relation to the issues of Tranche B Term Loans and Revolving Loans made to ACI and Notes issued by ACI under this Agreement, so that payment of interest under each of the above-mentioned Loans will be exempt from withholding tax under the Income Tax Assessment Act of 1936 (Commonwealth of Australia). Non-compliance by any Arranger or Documentation Agent with this paragraph shall not relieve ACI of its obligations under Sections 4.7(a) or 4.7(c).
(f) Each Lender under the Tranche C Term Facility represents and warrants to ACI NZ that as of the Closing Date and on any date that any interest (or any payment deemed by applicable law to be interest) is payable in respect of the Tranche C Term Loans that if it receives any such payment under this Agreement subject to the New Zealand resident withholding tax rules, it holds an “RWT exemption certificate” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) or otherwise has exempt status in respect of New Zealand resident withholding tax. Non-compliance by any Lender with this clause (f) shall not relieve ACI NZ of its obligations under Section 4.7(a).
(g) ACI NZ or any other Loan Party who makes a payment under this Agreement subject to the New Zealand non-resident withholding tax rules may at any time, and shall if requested by any Lender under the Tranche C Term Facility:
(i) if permitted by applicable law, register as an “Approved Issuer” (as defined in the New Zealand Income Tax Act 2007 (New Zealand)) and register this document with the New Zealand Inland Revenue Department under section 86H of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand); and
(ii) in respect of each payment of interest (or any payment deemed by applicable law to be interest) in respect of the Tranche C Term Loans to a Lender that receives such payments subject to the New Zealand non-resident withholding tax rules, make the relevant payment of “Approved Issuer Levy” (as defined in the Stamp and Cheque Duties Act 1971 (New Zealand)) in accordance with section 86K of the Stamp and Cheque Duties ▇▇▇ ▇▇▇▇ (New Zealand) in order to reduce (to the extent permitted by law) the applicable level of non-resident withholding tax to zero per cent.
(h) Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.8 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Loan 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any . Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the hereby authorizes Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in set off and apply any and all amounts at any time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made owing to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Loan Document or otherwise payable by Administrative Agent to deliver the Lender from any other source against any amount due to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (f).
(fi) If the Administrative Agent or any Lender party determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified pursuant to this Section 4.7 (including by the Credit Parties or with respect to which a Credit Party has paid payment of additional amounts pursuant to this Section 4.01(a4.7), it shall pay to the relevant Credit Party indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party made under this Section 4.01(a) 4.7 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party. Such indemnifying party, upon the request of the Administrative Agent or such Lenderindemnified party, agrees shall repay to repay such indemnified party the amount paid over pursuant to such Credit Party this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or that such Lender indemnified party is required to repay such refund to such Governmental Authority. Nothing Notwithstanding anything to the contrary in this Section 4.01(fparagraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to obligate the Administrative Agent or require any Lender indemnified party to disclose make available its Tax returns (or any other information regarding relating to its Tax affairs Taxes that it deems confidential) to the indemnifying party or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionPerson.
(gj) For the avoidance of doubt, for purposes of this Section 4.014.7, the term "“Lender" ” shall include any Overdraft Provider or Issuing Bank Lender, and any Swingline Lenderthe term “applicable law” shall include FATCA.
(k) Each party’s obligations under this Sec
Appears in 1 contract
Net Payments. (a) All Except as otherwise required by law, all payments made by the Borrower to any Lender or on account of the Administrative Agent under this Agreement and/or any Credit Party under any Credit Loan Document shall be made free and clear of, and without deduction reduction for or withholding foron account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding income and franchise taxes imposed by any jurisdiction in which such Lender's principal or lending office is located or in which such Lender is engaged in a trade or business or any political subdivision or taxing authority thereof or therein (such non-excluded taxes being called "Taxes, except as required by applicable Requirements of Law"). If any Taxes are required by applicable Requirements of Law to be withheld or deducted by from any applicable withholding agent from such payments, (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after all required deductions or withholdings (including deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determinesunder this Agreement and/or any Loan Document, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it Borrower shall pay timely remit such taxes to the relevant Credit Party an amount equal Governmental Authority imposing the same and the amounts so payable to such refund (but only Lender shall be increased to the extent necessary to yield to such Lender (after payment of indemnity payments madeall Taxes) interest or any such other amounts payable at the rates or in the amounts specified in this Agreement and/or any Loan Document. Whenever any Tax is payable by the Borrower, or additional amounts paidas promptly as possible thereafter, by such Credit Party under Section 4.01(a) with respect the Borrower shall send to the Indemnified Taxes Administrative Agent, for its own account or Other Taxes giving rise to such refund), net the account of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid a certified copy of an original official receipt received by the relevant Governmental Authority with respect Borrower showing payment thereof. Without prejudice to such refund); provided that the relevant Credit Partyforegoing, upon the request of if any Lender or the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate make any payment on account of Taxes, the Borrower will, upon notification by the Lender or the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Agent, promptly indemnify such Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) against such Taxes. For the avoidance of doubt, for purposes of this Section 4.012.12, the term "LenderTaxes" includes interest, penalties and expenses payable or incurred in connection therewith. A certificate as to any additional amounts (showing in reasonable detail the calculation thereof, or, alternatively, including a copy of the notice from the taxing jurisdiction notifying the Lender of its liability for Taxes) payable to a Lender under this Section 2.12 submitted to the Borrower by such Lender shall, absent manifest error, be final, conclusive and binding for all purposes upon all parties hereto. The Lender shall include submit such certification or otherwise provide written notice to the Borrower within a reasonable period of time after becoming aware of any Issuing Bank Taxes for which it is entitled to payments of additional amounts under this Section 2.12.
(b) Prior to the date of initial funding by each Lender that is not incorporated under the laws of the United States of America or a state thereof, such Lender will deliver to the Borrower and the Administrative Agent two duly completed copies of United States Internal Revenue Service Form 1001 or 4224 or successor applicable form, as the case may be, certifying in each case that such Lender is entitled to receive payments under this Agreement and/or any Swingline LenderLoan Document payable to it, without deduction or withholding of any United States federal income taxes. Each Lender that delivers to the Borrower and the Administrative Agent a Form 1001 or 4224 pursuant to the preceding sentence, and each assignee, undertakes to deliver to the Borrower and the Administrative Agent two copies of the said Form 1001 or 4224, or successor applicable forms, or other manner of certification, as the case may be, on or before the date that any such form previously delivered expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower and the Administrative Agent, and such extensions or renewals thereof as may reasonably be requested by the Borrower, certifying in the case of a Form 1001 or 4224 that such Lender is entitled to receive payments under this Agreement and/or any other Loan Document without deduction or withholding of any United States federal income taxes, unless in any such cases an event (including without limitation any change in treaty, law or regulation) has occurred subsequent to the Closing Date and prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it. Each such Lender which is not able to provide the applicable form shall advise the Borrower that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. Notwithstanding any other provision of this Section 2.12, no Lender shall be required to deliver any form pursuant to this Section 2.12 that such Lender is not legally able to deliver.
(c) The Borrower shall not be required to pay any increased amount on account of Taxes pursuant to this Section 2.12 to any Lender to the extent that such Taxes would not have been payable if such Lender had furnished a form required by Section 2.12(b), unless such failure results from any event subsequent to the date hereof (including without limitation any change in treaty, law or regulation) specified in the second sentence of Section 2.12(b).
Appears in 1 contract
Sources: Loan Agreement (CSS Industries Inc)
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as ; provided that if the Borrower or any Guarantor or the Administrative Agent shall be required by Applicable Law (as determined in the good faith discretion of an applicable Requirements of Law. If withholding agent) to deduct or withhold any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then (i) the Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings and (ii) the Borrower or such Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the extent relevant Governmental Authority within the time allowed and in accordance with Applicable Law. If such deduction or withholding a Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Administrative Agent, the Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes are payable by the Borrower or such Guarantor, as promptly as practicable thereafter, the Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (iior other evidence acceptable to such Lender, acting reasonably) received by the applicable withholding agent will make Borrower or such deductions or withholdings, and Guarantor showing payment thereof..
(iiib) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In additionAuthority Other Taxes in accordance with Applicable Law, or at the Credit Parties shall option of the Administrative Agent, timely pay reimburse it for the payment of any Other Taxes that are paid by the Administrative Agent to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) payable or paid by such Agent or Lender or required to be withheld or deducted from a payment to such Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or Other legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), the Administrative Agent or the Collateral Agent (as applicable) 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 Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such ▇▇▇▇▇▇’s failure to comply with the provisions of Section 13.6 relating to the maintenance of a 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 this Agreement or any Credit Document, and any reasonable expenses arising therefrom or with respect thereof, 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 prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) 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 this Agreement or 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 paragraph (d).
(be) Any Non-U.S. Lender that is entitled to claiming a basis for an exemption from or reduction of withholding Tax under the law of the jurisdiction in which the Borrower is resident for tax purposes, or under any treaty to which such jurisdiction is a party, with respect to payments made hereunder or under any other Credit Document shall shall, to the extent it is legally able to do so, deliver to the applicable Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times prescribed by Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably prescribed by Applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding or as will permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made. In addition, any Lender, if requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Lender shallNotwithstanding anything to the contrary in this Section 5.4(d), whenever a lapse in time or change in circumstances renders the completion, execution and submission of such documentation (including any specific documents required below other than such documentation set forth in Section 4.01(c5.4(f), 5.4(i) expiredand 5.4(j) below) shall not be required if in the Lender’s reasonable judgment such completion, obsolete execution or inaccurate in submission would subject such Lender to any respect, deliver promptly to material unreimbursed cost or expense or would materially prejudice the applicable Borrowers and the Administrative Agent updated legal or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing commercial position of its inability to do sosuch Lender.
(cf) Without limiting the generality of Section 5.4(e), each Non-U.S. Lender with respect to any amounts payable hereunder or under any other Credit Document shall, to the foregoing, extent it is legally entitled to do so:
(Ii) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent Agent, on or prior to the date on which it such Non-U.S. Lender becomes a party Lender under this Agreement (and from time to this Agreementtime thereafter upon the reasonable request of the Borrower or the Administrative Agent), (i) two accurate and complete original signed executed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (iix) in the case of a Non-U.S. Lender 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 C (any such certificate”, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of United States Internal Revenue Service Form W-8BEN or W-8BEN-E (together with a certificate substantially in the form of Exhibit J-1 representing that such Non-U.S. Lender is not a bank within the meaning of Section 881(c)(3)(A) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower, any interest payment received by such Non-U.S. Lender under this Agreement or successor formany other Credit Document is not effectively connected with the conduct of a trade or business in the United States and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code); ), (iiiy) Internal Revenue Service Form W-8BEN, Form W-8-BEN-E or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding Tax on payments under any Credit Document or (z) to the extent a Non-U.S. Lender is not the beneficial owner with respect to any portion of any sums paid or payable to such Lender under any of the Credit Documents (for example, in the case of a typical participation or where the Non-U.S. Lender is a partnership or a participating Lender), two accurate and complete original signed copies of pass through entity) Internal Revenue Service Form W-8IMY and all necessary attachments (or successor formincluding the forms described in clauses (x) of the Lenderand (y) above and in Section 5.4(i), accompanied by Form W-8ECIExhibit J-2, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor Exhibit J-3 and or other applicable form) certification documents from each beneficial owner owner, as applicable); provided that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Non-U.S. Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and it may provide Exhibit J-4 on behalf of one or more of its direct or indirect partners that are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or and
(ivii) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, Agent two further copies of any such form or certification (or any applicable successor form) on or before the date that any such form or certification expires or becomes obsolete or inaccurate in any respect and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower or the Administrative Agent. If in any such case any Change in Law has occurred prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, any such delivery would otherwise be required that renders any such form inapplicable or any successor form, certifying that would prevent such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's nonNon-U.S. status. A Lender from duly completing and delivering any such form with respect to it, such Non-U.S. Lender shall deliver to promptly so advise the Company Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(fg) If any Lender, the Administrative Agent or any Lender the Collateral Agent, as applicable, determines, in its sole discretion exercised in good faith, that it has had received and retained a refund of any an Indemnified Taxes Tax or additional sums payable under this Section 5.4 (including an Other Taxes as to Tax) for which it a payment has been indemnified made by the Credit Parties or with respect to which a Credit Party has paid additional amounts Borrower pursuant to Section 4.01(a)this Agreement, it shall pay to which refund in the relevant Credit Party an amount equal good faith judgment of such Lender, the Administrative Agent or the Collateral Agent, as the case may be, is attributable to such refund payment made by the Borrower, then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of such Lender, the Administrative Agent or such Lenderthe Collateral Agent, as the case may be, and without interest (other than any interest paid by received thereon from the relevant Governmental Authority with respect to such refund)) as the Lender, the Administrative Agent or the Collateral Agent, as the case may be, determines in its sole discretion exercised in good faith to be the proportion of the refund as will leave it, after such reimbursement, in no better or worse position (taking into account expenses or any Taxes imposed on the refund) than it would have been in if the payment had not been required; provided that the relevant Credit PartyBorrower, upon the request of the Lender, the Administrative Agent or such Lenderthe Collateral Agent, agrees to repay the amount paid over to such Credit Party the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender, the Administrative Agent or such Lender the Collateral Agent in the event the Lender, the Administrative Agent or such Lender the Collateral Agent is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate A Lender, the Administrative Agent or the Collateral Agent shall claim any Lender refund that it determines is available to it, unless it concludes in its sole discretion that it would be adversely affected by making such a claim. None of any Lender, the Administrative Agent or the Collateral Agent shall be obliged to disclose its Tax returns or any other information regarding its Tax tax affairs or computations that it deems confidential to any Person or otherwise to arrange its Tax affairs Credit Party in any manner other than as it determines in its sole discretionconnection with this clause (g).
(gh) For If the avoidance Borrower determines that a reasonable basis exists for contesting a Tax, each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request in challenging such Tax. Subject to the provisions of doubtSection 2.12, for purposes of each Lender and Agent agrees to use reasonable efforts to cooperate with the Borrower as the Borrower may reasonably request to minimize any amount payable by the Borrower or any Guarantor pursuant to this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender5.
Appears in 1 contract
Net Payments. (a) All Any and all payments made by or on account behalf of the Borrower or any Credit Party Guarantor under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding forfor or on account of, any Taxes, except as ; provided that if the Borrower or any Guarantor or the Administrative Agent shall be required by Applicable Law (as determined in the good faith discretion of an applicable Requirements of Law. If withholding agent) to deduct or withhold any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then (i) the Borrower or such Guarantor or the Administrative Agent shall make such deductions or withholdings and (ii) the Borrower or such Guarantor or the Administrative Agent shall timely pay the full amount deducted or withheld to the extent relevant Governmental Authority within the time allowed and in accordance with Applicable Law. If such deduction or withholding a Tax is on account of an Indemnified Tax or Other Tax, the sum payable by the Borrower or any Guarantor shall be increased by the applicable Credit Party as necessary so that after making all such required deductions or and withholdings (including such deductions or withholdings applicable to additional sums payable under this Section 4.01) have been made5.4), the Lender (Administrative Agent, the Collateral Agent or any Lender, as the Administrative Agent if the Administrative Agent receives the payment for its own account) case may be, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes are payable by the Borrower or such Guarantor, as promptly as practicable thereafter, the Borrower or Guarantor shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt (iior other evidence acceptable to such Lender, acting reasonably) received by the applicable withholding agent will make Borrower or such deductions or withholdings, and Guarantor showing payment thereof..
(iiib) the applicable withholding agent The Borrower shall timely pay the full amount deducted or withheld to the relevant Governmental Authority. In additionAuthority Other Taxes in accordance with Applicable Law, or at the Credit Parties shall option of the Administrative Agent, timely pay reimburse it for the payment of any Other Taxes that are paid by the Administrative Agent to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. .
(c) The Credit Parties jointly and severally agree, to Borrower shall indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender, and reimburse the Administrative Agent and each Lender, Lender within 10 days of fifteen Business Days after written request demand therefor, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or required with respect to be withheld any payment by or deducted in respect on account of any payment to obligation of the Administrative Agent Borrower or such Lender any Guarantor hereunder or under any other Credit Document, and any Other Taxes Document (including any Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 4.01), 5.4) payable or paid by such Agent or Lender or required to be withheld or deducted from a payment to such Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or Other legally imposed 104 or asserted by the relevant Governmental Authority. A certificate setting forth reasonable detail as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), the Administrative Agent or the Collateral Agent (as applicable) 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 Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.6 relating to the maintenance of a 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 this Agreement or any Credit Document, and any reasonable expenses arising therefrom or with respect thereof, 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 prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver set off and apply any and all amounts at any time owing to such Lender under this Agreement or any Credit Document or otherwise payable by the Administrative Agent to the Credit Parties and to Lender from any successor Administrative Agent other source against any documentation provided by such Lender amount due to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (d).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account behalf of any Credit Party under this Agreement or any other Credit Document shall be made free and clear of, and without deduction or withholding for, for or on account of any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld from any amounts payable by or deducted by on behalf of any Credit Party under this Agreement or any other Credit Document (as determined in the good faith discretion of the applicable withholding agent), then the applicable withholding agent from such payments, (i) shall be entitled to the extent make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law, and if such Tax is on account of an Indemnified Tax or Other a Non-Excluded Tax, then the sum Borrower shall increase the amounts payable shall be increased by to the applicable Credit Party as Recipient to the extent necessary so that after all required deductions such deduction or withholdings withholding has been made (including such deductions or and withholdings applicable to additional sums payable under this Section 4.01Section) have been made, the Lender (or the Administrative Agent if the Administrative Agent receives the payment for its own account) applicable Recipient receives an amount equal to the sum it would have received had no such deductions deduction or withholdings withholding been made. Whenever any Taxes are paid by a Credit Party pursuant to this Section 5.04(a), (ii) as soon as practicable thereafter, the applicable withholding agent will make such deductions Borrower shall send to the Administrative Agent the original or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to a certified copy of a receipt issued by the relevant Governmental Authority. In addition, a copy of the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesreturn reporting such payment, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly Borrower shall indemnify the Agents and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, Lenders for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Non-Excluded Taxes (including any Indemnified Taxes and Other Non-Excluded Taxes imposed or asserted on or attributable to amounts payable under this Section 4.015.04(a), ) that are paid by any Agent or Lender or that are required to be withheld or deducted from a payment to any Agent or Lender and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Non-Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, within ten (10) days after demand therefor. A certificate as to the amount of such payment or liability delivered to the Borrower by an Agent or 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. In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent, shall timely reimburse it for the payment of any Other Taxes. The agreements in this Section 5.04(a) shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.
(i) Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by Applicable Law or reasonably requested by the Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate; provided, that such Lender is legally entitled to complete, execute and deliver such documentation. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Each Person that shall become a Participant pursuant to Section 13.06 or a Lender pursuant to Section 13.06 shall, upon the effectiveness of the related transfer, be required to provide all the forms and statements required pursuant to this Section 5.04(b); provided, that in the case of a Participant such Participant shall furnish all such required forms and statements to the Lender from which the related participation shall have been purchased. Notwithstanding any other provision of this paragraph, no Lender shall be required to deliver any form (other than such documentation required by Sections 5.04(b)(ii)(A)-(C) and (iii)) that in such Lender’s reasonable judgment 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,
(A) any Lender that is a “United States Person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”) shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall reasonably be requested) on or about the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
(1) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS 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 applicable payments under any Credit Document, IRS Form W-8BEN or IRS 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;
(2) executed copies of IRS Form W-8ECI;
(3) in the case of a Non-U.S. 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 L-1 to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” within the meaning of Section 957 of the Code related to the Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or
(4) to the extent a Non-U.S. Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-2 or Exhibit L-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner;
(C) Any Non-U.S. Lender shall deliver to the Borrower 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 Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower 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 Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
(iii) Without limiting the generality of the foregoing, if a payment made to a Recipient under any Credit Document would be subject to United States federal withholding tax imposed by FATCA if such Recipient 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), such 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 (including as prescribed by Section 1471(b)(3)(C)(i), of the Code and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment under FATCA, if any. Solely for the purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iv) Each Recipient agrees that if any form or certification it previously delivered pursuant to this Section 5.04(b) expires or becomes obsolete or inaccurate in any material respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(c) If any Lender or any Agent determines, in its sole discretion exercised in good faith, that it has received a refund of a Tax for which it has been indemnified by the Borrower pursuant to this Section 5.04 (including by the payment of additional amounts by the Borrower pursuant to this Section 5.04), then such Lender or such Agent, as the case may be, shall reimburse the Borrower for such amount (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 5.04 with respect to the Tax giving rise to such refund), net of all out-of-pocket expenses of such Agent or such Lender (including any Taxes imposed on the receipt of such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of such Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent or such Lender in the event such Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (c), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (c) 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 indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or any Lender to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.
(d) Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Non-Excluded Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 13.06 relating to the maintenance of a 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 payment or liability prepared in good faith and delivered to any Lender by the Administrative Agent or Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver 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 Credit Parties and to Lender from any successor Administrative Agent other source against any documentation provided by such Lender amount due to the Administrative Agent pursuant to Section 4.01(b) or 4.01(cunder this paragraph (d).
(fe) If Each party’s obligations under this Section 5.04 shall survive the resignation or replacement of the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund assignment of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments maderights by, or additional amounts paidthe replacement of, by such Credit Party under Section 4.01(a) with respect to a Lender, the Indemnified Taxes termination of the Commitments and the repayment, satisfaction or Other Taxes giving rise to such refund), net discharge of all reasonable out-of-pocket expenses (including obligations under any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretionDocument.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Lawlaw. If any Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.04), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent within 45 days after the date the payment by any of them of any Indemnified Taxes or Other Taxes is due pursuant to applicable law certified copies of tax receipts evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes (including any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 5.04) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Lender, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or a Lender (or by the Administrative Agent on behalf of a Lender) ), shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reduce rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.04(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Borrower or the Administrative Agent) or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) : (x) each Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the Closing Date or, in the case of a Lender that is a Lender to the Borrower and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the relevant Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date on which it becomes a party of such assignment or transfer to this Agreementsuch Lender, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); , or (ii) in the case of a Lender claiming exemption from U.S. federal withholding Tax 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 C C-1, C-2, C-3 or C-4 (any such certificate, a "“U.S. Tax Compliance Certificate"”) and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); ) certifying to such Lender’s entitlement as of such date to a complete exemption from U.S. withholding tax with respect to payments of interest to be made under this Agreement and under any Note, or (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c5.04(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption), the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law laws (including the Treasury Regulationsregulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. United States federal withholding Tax on any payments to such Lender under the Credit DocumentsTax; and (y) each Each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to at the date on which it becomes a party to this Agreementtimes specified in Section 5.04(b), two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying form that such Lender Person is exempt from United States backup withholding and (II) each Lender entitled to the Canadian Borrowers shall deliver provide at such time, in order to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt qualify for an exemption from United States federal backup back-up withholding requirements; and (z) if any 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 Sections 1471(b) or (y1472(b) an applicable Internal Revenue Service Form W-8 certifying of the Code, as applicable), such Lender's non-U.S. status. A Lender shall deliver to the Company Borrower and the Administrative Agent, at the time or times prescribed by applicable law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent, such documentation prescribed by applicable Requirements of Law law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers and Borrower or the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's ’s obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Documentpayment. Solely for purposes of the preceding sentencethis Section 5.04(c)(z), "“FATCA" ” shall include any amendment made to FATCA after the Second Restatement Effective Closing Date.
(d) . Notwithstanding any other provision of this Section 4.015.04, a Lender shall not be required to deliver any documentation form that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Credit Agreement
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements of Applicable Law. If any Taxes are required by applicable Requirements of Law to be withheld or deducted from such payments by any applicable withholding agent from such paymentsagent, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made5.01), the each Lender (or or, in the case of a payment made to the Administrative Agent if the Administrative Agent receives the payment for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with Applicable Law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Applicable Law. As soon as practicable after the payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Parties, the The Credit Parties will furnish to the Administrative Agent certified within 45 days after the date the payment by any of them of any Taxes pursuant to this Section 5.01 copies of tax receipts receipts, or other evidence reasonably satisfactory to the Administrative Agent, evidencing such payment by the applicable Credit Party or other evidence of such payment reasonably satisfactory to the Administrative AgentParty. The Credit Parties jointly and severally agree, to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 days of written request therefor, for the amount of any Indemnified Taxes or Other Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any payment to the Administrative Agent or such Lender under any Credit Document, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.015.01), and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Administrative Agent or such Lender (or by the Administrative Agent on behalf of a Lender) shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced reduce rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers Lead Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrowers Lead Borrower or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law law or reasonably requested by the Borrowers Lead Borrower or the Administrative Agent as will enable the Borrowers Lead Borrower or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c5.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers Lead Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers Lead Borrower or the Administrative Agent) or promptly notify the Borrowers Lead Borrower and the Administrative Agent in writing of its inability legal ineligibility to do so. Each Lender hereby authorizes the Administrative Agent to deliver to the Lead Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant to this Section 5.01(b) or Section 5.01(c).
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Net Payments. (a) All payments made by or on account of any Credit Party under any Credit Document shall be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable Requirements law (as determined in the good- faith discretion of Lawthe withholding agent). If any Indemnified Taxes or Other Taxes are required by applicable Requirements of Law to be withheld or deducted by any applicable withholding agent from such payments, then the Credit Parties jointly and severally agree that (i) to the extent such deduction or withholding is on account of an Indemnified Tax or Other Tax, the sum payable by the Credit Parties shall be increased by the applicable Credit Party as necessary so that after making all required deductions or withholdings withholding (including deductions deduction or withholdings applicable to additional sums payable under this Section 4.01) have been made), the Lender (or the Administrative Agent if or Lender (as the Administrative Agent receives the payment for its own accountcase may be) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent will make such deductions or withholdings, and (iii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental AuthorityAuthority in accordance with applicable law. In addition, the Credit Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Lawlaw. As soon as practicable after the any payment of any Indemnified Taxes or Other Taxes described in this Section 4.01 by the Credit Partiesto a Governmental Authority, the Credit Parties will furnish to the Administrative Agent certified copies of tax receipts evidencing such payment by the applicable Credit Party Party, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. The Credit Parties jointly and severally agree, agree to indemnify and hold harmless the Administrative Agent and each Lender, and reimburse the Administrative Agent and each Lender, within 10 ten (10) days of written request therefor, for the amount of any Indemnified Taxes or Other (including any Indemnified Taxes imposed on amounts payable under this Section 4.01) payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted in respect of any from a payment to the Administrative Agent or such Lender under any Credit DocumentLender, and any Other Taxes (including any Indemnified Taxes and Other Taxes imposed on or attributable to amounts payable under this Section 4.01)Taxes, and any reasonable out-of-pocket expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered to the Borrower by a Lender or the Issuing Bank (with a copy to the Administrative Agent or Lender (Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender) Lender or the Issuing Bank, shall be conclusive absent manifest error.
(b) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent, certifying as to any entitlement of such Lender to an exemption from, or a reduced rate of, withholding Tax. In addition, each Lender shall deliver to the applicable Borrowers and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether such Lender is subject to backup withholding or information reporting requirements. Each Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documents required below in Section 4.01(c)) expired, obsolete or inaccurate in any respect, deliver promptly to the applicable Borrowers and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrowers or the Administrative Agent) or promptly notify the Borrowers and the Administrative Agent in writing of its inability to do so.
(c) Without limiting the generality of the foregoing, (I) (x) each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall deliver to the U.S. Parent Borrower and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement, (i) two accurate and complete original signed copies of (A) Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party or (B) Internal Revenue Service Form W-8ECI (or successor form); (ii) in the case of a Lender 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 C (any such certificate, a "U.S. Tax Compliance Certificate") and two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or successor form); (iii) to the extent a Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY (or successor form) of the Lender, accompanied by Form W-8ECI, Form W-8BEN, Form W-8BEN-E, U.S. Tax Compliance Certificate, Form W-9, Form W-8IMY, and/or any other required information (or successor or other applicable form) from each beneficial owner that would be required under this Section 4.01(c) if such beneficial owner were a Lender (provided that, if the Lender is a partnership for U.S. federal income Tax purposes (and not a participating Lender), and one or more direct or indirect partners are claiming the portfolio interest exemption, the U.S. Tax Compliance Certificate may be provided by such Lender on behalf of such direct or indirect partner(s)); or (iv) two accurate and complete original signed copies of any other form prescribed by applicable U.S. federal income tax law (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, U.S. federal withholding Tax on any payments to such Lender under the Credit Documents; and (y) each Lender that is a United States person, as defined in Section 7701(a)(30) of the Code, shall deliver to the U.S. Parent Borrower and the Administrative Agent, on or prior to the date on which it becomes a party to this Agreement, two accurate and complete original signed copies of Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States backup withholding and (II) each Lender to the Canadian Borrowers shall deliver to the Company and the Administrative Agent on or prior to the date on which it becomes a party to this Agreement two accurate and complete original signed copies of either (x) Internal Revenue Service Form W-9, or any successor form, certifying that such Lender is exempt from United States federal backup withholding or (y) an applicable Internal Revenue Service Form W-8 certifying such Lender's non-U.S. status. A Lender shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Borrowers or the Administrative Agent, such documentation prescribed by applicable Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender's obligations under FATCA and to determine, if necessary, the amount to deduct and withhold from payments made to such Lender under any Credit Document. Solely for purposes of the preceding sentence, "FATCA" shall include any amendment made to FATCA after the Second Restatement Effective Date.
(d) Notwithstanding any other provision of this Section 4.01, a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(e) Each Lender hereby authorizes the Administrative Agent to deliver to the Credit Parties and to any successor Administrative Agent any documentation provided by such Lender to the Administrative Agent pursuant to Section 4.01(b) or 4.01(c).
(f) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Credit Parties or with respect to which a Credit Party has paid additional amounts pursuant to Section 4.01(a), it shall pay to the relevant Credit Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Credit Party under Section 4.01(a) with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses (including any Taxes) of the Administrative Agent or such Lender, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the relevant Credit Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Nothing in this Section 4.01(f) shall be construed to obligate the Administrative Agent or any Lender to disclose its Tax returns or any other information regarding its Tax affairs or computations to any Person or otherwise to arrange its Tax affairs in any manner other than as it determines in its sole discretion.
(g) For the avoidance of doubt, for purposes of this Section 4.01, the term "Lender" shall include any Issuing Bank and any Swingline Lender.
Appears in 1 contract
Sources: Abl Credit Agreement (Performance Sports Group Ltd.)