Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoff, counterclaim or other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed on or measured by the net income, revenue, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been made. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender. (b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any. (c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Sources: Credit Agreement (Nii Holdings Inc)
Net Payments. (a) All Except as provided in Section 5.06(b), all payments made by the Borrower any Obligor hereunder or under any other Financing Document will be made without setoff, counterclaim Note or other similar defense. All such payments will Guarantee shall be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature Taxes now or hereafter imposed by any jurisdiction Governmental Authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingexcluding any Excluded Tax) and all interest, in penalties or similar liabilities with respect thereto (all such Taxes (other than Excluded Taxes) being referred to collectively as "COVERED TAXES"). If any Covered Taxes are so levied or imposed, each Obligor agrees on a joint and several basis to pay the full amount of such Covered Taxes, and such additional amounts as may be necessary so that every payment to any Lender or Administrative Agent, as the case may be, of all amounts due under this Agreement, the Guarantees or under any Note, after withholding or deduction for or on account of any Covered Taxes, will not be less than the amount such Lender or Administrative Agent would have received had no such withholding or deduction been made. If any amounts are payable in respect of Covered Taxes pursuant to the preceding sentence, each Obligor agrees, notwithstanding the definition of Excluded Taxes, to reimburse on a joint and several basis each Lender, any tax upon the written request of such Lender, (i) for Taxes imposed on or measured by the net income, revenue, income or gross receipts net profits of such Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or under the laws of any political subdivision thereof or thereintaxing authority of any such jurisdiction by reason of the making of payments in respect of Covered Taxes pursuant to this Section (including pursuant to this sentence) and all interest(ii) for any withholding of Taxes as such Lender shall determine are payable by, penalties or similar liabilities with withheld from, such Lender in respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred of amounts paid in respect of Covered Taxes to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account behalf of such Lender pursuant to the preceding sentence and in respect of any Taxes, will not be less than the amount provided for herein amounts paid to or in on behalf of such Financing Document as if the corresponding deduction or withholding had not been madeLender pursuant to this sentence. The Borrower Each Obligor will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence certified copies of such payment in form and substance tax receipts or other documentation reasonably satisfactory to such Lender evidencing such payment by such Obligor. Except as provided in Section 5.06(b) and (e), the Administrative Agent. The Borrower agrees Obligors agree to jointly and severally indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Covered Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoffsetoff or counterclaim. The Borrower will pay, counterclaim or prior to the date on which penalties attach thereto, all present and future income, stamp and other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, impostsor costs and charges whatsoever imposed, dutiesassessed, feeslevied or collected on or in respect of a Loan and/or the recording, assessments registration, notarization or other formalization thereof and/or any payments of principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs and charges being herein collectively called "Taxes"; provided that Taxes shall not include taxes imposed on or measured by the overall net income of whatever nature now that Lender (or hereafter any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by the United States of America or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingtherein, in taxes imposed under Section 884 of the case of any Lender, any tax imposed Code or taxes on or measured by the overall net income (or any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) of that Lender or any foreign office, revenue, branch or gross receipts subsidiary of such that Lender pursuant to the laws of the jurisdiction by any foreign country or subdivision thereof in which it that Lender or that office, branch or subsidiary is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”doing business). If any Taxes are so levied or imposed, the The Borrower agrees to shall also pay such additional amounts as may be necessary so equal to increases in taxes payable by that Lender described in the foregoing proviso which increases are attributable to payments made by the Borrower described in the immediately preceding sentence of this Section. Promptly after the date on which payment of any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Lender, furnish to that Lender evidence, in form and substance satisfactory to that Lender, that the net amount received by the relevant Financing Party hereunder or Borrower has met its obligation under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madethis Section 4.04. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each LenderLender against, and reimburse such each Lender upon on demand for, any Taxes, as determined by that Lender in its written request, good faith and reasonable discretion. Such Lender shall provide the Borrower with appropriate receipts for any payments or reimbursements made by the amount of any Taxes so levied or imposed and paid by such LenderBorrower pursuant to this Section 4.04.
(b) Each Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes agrees to provide to the Borrower 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 1.15 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section 4.04(b)), on the date of such assignment or transfer to such Lender, two accurate and complete original signed copies of Internal Revenue Service Form W8ECI or Form W8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement or any Note. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is not a corporation (as such term is defined in Section 7701(a)(3) of the Code) for such purposes, agrees to provide to the Borrower 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 1.15 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section 4.04(b)), on the date of such assignment to such Lender, two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor form). In addition, each such Lender agrees that from time to time after the Measurement Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower two new accurate and complete original signed copies of Internal Revenue Service Form W8ECI or W8BEN (with respect to a claim for benefits of an income tax treaty), as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement or any Note, or it shall immediately notify the Borrower and the Administrative Agent agree of its inability to complete in good faith and execute and deliver to the Borrower, in a timely manner, any such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary hereincontained in Section 4.04(a), neither (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or other similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender nor which is not a United States person (as such term is defined in Section 7701(a)(30) of the Administrative Agent Code) for United States federal income tax purposes and which has not provided to the Borrower such forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to pay a Lender in respect of income or similar taxes imposed by the United States or any additional amounts with respect thereto if such Lender has not provided to the Borrower the Internal Revenue Service forms required to provide any Forms be provided to the Borrower pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any4.04(b).
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Sources: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)
Net Payments. (a) All payments made by the Borrower hereunder to or under for the benefit of any other Financing Document will Lender or the Agent shall be made without setoff, counterclaim or other similar defense. All Except as provided in Subsection 3.9.2 (b) below, all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments assessments, or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, excluding any tax imposed on or measured by the net incomeincome or profits of the Lender or the Agent, revenueas the case may be, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or thereinorganized) and together with all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxescollectively, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Covered Taxes”"). If Borrower shall be required by law to deduct any Covered Taxes are so levied from any sum payable hereunder to any Lender or imposedthe Agent, (A) the Borrower agrees to pay such additional amounts sum payable shall be increased as may be necessary so that after making all required deductions of Covered Taxes (including deductions of Covered Taxes applicable to additional sums payable under this Section such Lender or the net Agent, as the case may be, receives an amount equal to the sum it would have received by had no such deductions been made, (B) Borrower shall make such deductions and (C) Borrower shall pay the full amount so deducted to the relevant Financing Party hereunder taxation authority or under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or authority in such Financing Document as if the corresponding deduction or withholding had not been madeaccordance with applicable law. The Borrower will shall furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence certified copies of tax receipts evidencing such payment in form and substance reasonably satisfactory to the Administrative Agentby Borrower. The Borrower agrees to indemnify and hold harmless each Lender, the Lenders and the Agent and reimburse such Lender upon its written requesteach of them, as the case may be, for the amount of any Covered Taxes so levied or imposed and paid by such Lenderthem.
(b) Each Lender and which is organized under the Administrative Agent agree to complete in good faith and execute and laws of a jurisdiction other than the United States or any State thereof (a "Foreign Lender") shall deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless and Borrower (i) two valid, duly completed copies of IRS Form W-8ECI and W-8BEN or successor applicable form, as the case may be, and any other required form, certifying in each case that such Forms are Foreign Lender is entitled to receive payments under this Agreement and the Revolving Loan Notes payable to it without deduction or withholding of any United States federal income taxes or with such withholding imposed at a reduced rate (the "Reduced Rate"), or (ii) a valid, duly completed IRS Form W-8 or W-9 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax. Each such Lender shall also deliver to Agent and Borrower two further copies of said Form W-8ECI or W-8BEN and W-8 or W-9, or successor applicable forms, or other manner of required by law certification, as the case may be, on or before the date that any such form expires or becomes obsolete or otherwise is required to be resubmitted as a condition toto obtaining an exemption from a required withholding of United States federal income tax or entitlement to having such withholding imposed at the Reduced Rate or after the occurrence of any event requiring a change in the most recent form previously delivered by it to Borrower and Agent, and such extensions or renewals thereof as may reasonably be requested by Borrower and Agent, certifying (i) in the case of a Form W-8ECI or W-8BEN that such Lender is entitled to receive payments under this Agreement and the Revolving Loan Notes payable to it without deduction or withholding of any United States federal income taxes, unless in any such case any change in a tax treaty to which the United States is a party, or evidence any change in law or regulation of entitlement tothe United States or official interpretation thereof has occurred after the Restatement Date and prior to the date on which any such delivery would otherwise be required that renders all such forms inapplicable or that would prevent such Foreign Lender from duly completing and delivering any such form with respect to it, relief and such Foreign Lender advises the Borrower and the Agent that it is not capable of receiving payments without any deduction or exemption in whole withholding at the Reduced Rate, or in part from any Taxes, (ii) such Lender in the case of a Form W-8 or the Administrative Agent is legally entitled to completeW-9, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if anyestablishing an exemption from United States backup withholding tax.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Net Payments. (a) All payments made by any Guarantor un-der this Agreement, and the Borrower hereunder or under any other Financing Document will Agreements shall be made without setoffreduction for or on account of, counterclaim any pre-sent or future income or other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, charges, fees, assessments or other charges of whatever nature deductions, withholdings, now or hereafter imposed here-after imposed, levied, collected, withheld or assessed by any jurisdiction country (or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingtherein, in including England) other than taxes of the case Commonwealth of any Lender, any tax imposed on or Puerto Rico measured by or based upon the overall net income, revenue, or gross receipts of such Lender pursuant to the laws income of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of Lender (such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges taxes being referred to collectively as “called "Taxes”"). If any Taxes are so levied or imposed, required to be withheld from any amounts payable to the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party Lender hereunder or under any other Financing DocumentAgreement, the amounts so payable to the Lender shall be increased to the extent necessary to yield to the Lender (after withholding payment of all Taxes) interest or deduction for or on account of any Taxes, will not be less than such other amounts payable hereunder at the amount provided for herein rates or in the amounts specified in this Agreement or such other Financing Document as if Agreement. It is understood and agreed that the corresponding deduction or withholding had not been made. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent Guarantor shall be required obligated to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or so "gross-up" with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay payments to the Borrower Lender under or in connection with the Loans and Letter of Credit Accommodations even though the Guarantor claims an amount that exemption from the payment or withholding of Taxes imposed under the laws of England or any governmental agency or body thereof with respect to such payments to the Lender. Whenever any Tax is payable by Guarantor, as promptly as possible thereafter, Guarantor shall send to the Lend-er, a certified copy of an original official receipt showing payment thereof. If the Guarantor fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Lender shallthe required re-ceipts or other required documentary evidence, in good faiththe Guarantor shall indemnify the Lender for any incremental taxes, determine is equal to the net benefit, after tax, which was obtained interest or penalties that may become payable by the Lender in such year as a consequence result of any such Tax Benefit; providedfailure. If any Taxes are required to be withheld from any amounts payable to the Lender hereunder or any other Financing Agreement, howeverLender may, that but shall not be required to, on behalf of Guarantor, increase the amounts payable to the Lender to the extent necessary to yield to Lender (iafter payment of all Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement or other Financing Agreement and Lender may determinemay, on behalf of the Guarantor, so "gross-up" payments to the Lender under or in its sole discretion consistent connection with the policies Loans and Letter of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default existsCredit Accommodations.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower Borrowers hereunder or under any other Financing Document will be made without setoff, counterclaim set-off or other similar defensecounterclaim. All such payments will by the Borrowers hereunder shall be made free and clear of, of and without deduction or withholding forfor any Taxes (as hereinafter defined), except to the extent that such deduction or withholding is required by law. For purposes of this Section 4.04, "Taxes" shall mean any present or future taxeslicense, registration or other fees, taxes or other amounts for or on account of levies, imposts, duties, feesdeductions, assessments withholdings or other charges of whatever nature now whatsoever nature, imposed, levied, collected, withheld or hereafter imposed assessed by any governmental or taxing authority, excluding income and franchise taxes imposed on a Lender (i) by a jurisdiction under which such Lender is organized or by operating in connection with this Agreement or any political subdivision thereof or (ii) as a result of a present or former connection between the jurisdiction of the governmental or taxing authority thereof or therein with respect to imposing such payments (but excluding, in taxes and the case of any Lender, any tax imposed on or measured by the net income, revenue, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If the Borrowers shall be required to withhold or deduct Taxes (other than U.S. Taxes as defined in Section 4.05) from any Taxes are so levied or imposedsum payable hereunder, (i) the Borrower agrees to pay such additional amounts sum payable shall be increased as may be necessary so that the net amount received by is equal to the relevant Financing Party hereunder sum which would have been received had no withholdings or under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not deductions been made. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) the Borrowers shall make such Lender necessary withholdings or the Administrative Agent is legally entitled to complete, execute and deliver such Forms deductions and (iii) the Borrower Borrowers shall have timely provided pay the full amount withheld or deducted to the relevant authority according to applicable law so that the Lenders shall not be required to make any deduction or payment of Taxes. Notwithstanding anything contained in this Section, the Borrowers shall not be required to make payment hereunder to the extent such amounts relate to any period prior to the date that is 90 days prior to the date that the Borrowers first receive notice from such Lender or the Administrative Agent requesting payment of any such additional amounts. Each Lender making a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount request for compensation under this Section 2.8 shall use reasonable efforts to change its Eurodollar lending office with a Lender and view to mitigate amounts payable hereunder so long as any such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect change is not unduly burdensome to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
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Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoff, counterclaim or other similar defense. All such payments The Borrower will be made free pay, prior to the date on which penalties attach thereto, all present and clear offuture income, stamp and without deduction or withholding for, any present or future other taxes, levies, impostsor costs and charges whatsoever imposed, dutiesassessed, feeslevied or collected on or in respect of a Loan and/or the recording, assessments registration, notarization or other formalization thereof and/or any payments of principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs and charges being herein collectively called “Taxes”; provided that Taxes shall not include taxes imposed on or measured by the overall net income of whatever nature now that Lender (or hereafter any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by the United States of America or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed or taxes on or measured by the overall net income (or any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income, revenue, ) of that Lender by any foreign country or gross receipts of such Lender subdivision thereof pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”located). If any Taxes are so levied or imposed, the The Borrower agrees to shall also pay such additional amounts as may be necessary so equal to increases in taxes payable by that Lender described in the foregoing proviso which increases are attributable to payments made by the Borrower described in the immediately preceding sentence of this Section. Promptly after the date on which payment of any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Lender, furnish to that Lender evidence, in form and substance satisfactory to that Lender, that the net amount received by the relevant Financing Party hereunder or Borrower has met its obligation under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madethis Section 4.04. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each LenderLender against, and reimburse such each Lender upon on demand for, any Taxes, as determined by that Lender in its written request, good faith and reasonable discretion. Such Lender shall provide the Borrower with appropriate receipts for any payments or reimbursements made by the amount of any Taxes so levied or imposed and paid by such LenderBorrower pursuant to this Section 4.04.
(b) Each Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes agrees to provide to the Borrower on or prior to the Fifth Restatement Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section 4.04(b)), on the date of such assignment or transfer to such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement or any Note or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit J (any such certificate, a “Section 4.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement or under any Note. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is not a corporation (as such term is defined in Section 7701(a)(3) of the Code) for such purposes, agrees to provide to the Borrower on or prior to the Fifth Restatement Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section 4.04(b)), on the date of such assignment to such Lender, two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor form). In addition, each such Lender agrees that from time to time after the Fifth Restatement Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or W-8BEN (with respect to a claim for benefits of an income tax treaty) or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement or any Note, or it shall immediately notify the Borrower and the Administrative Agent agree of its inability to complete in good faith and execute and deliver any such form. Notwithstanding anything to the Borrowercontrary contained in Section 4.04(a), (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or other similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes and which has not provided to the Borrower such forms that establish a timely manner, complete exemption from such form, certificates, information deduction or documentation relating withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to pay a Lender in respect of income or similar taxes imposed by the United States or any additional amounts with respect thereto if such Lender or Administrative Agent has not provided to establish the extent Borrower the Internal Revenue Service forms required to which any payments be provided to such Lender or Administrative Agent are exempt from, or are entitled the Borrower pursuant to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”this Section 4.04(b). Notwithstanding anything to the contrary herein, neither any Lender nor contained in the Administrative Agent shall be required to provide any Forms pursuant to preceding sentence or elsewhere in this Section 2.8(b4.04, the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in Section 4.04(a) unless (iwithout regard to the identity of the jurisdiction requiring the deduction or withholding) such Forms are required in respect of any amounts deducted or withheld by law it as described in the immediately preceding sentence as a condition toresult of any changes after the Fifth Restatement Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or evidence in the interpretation thereof, relating to the deducting or withholding of entitlement to, relief income or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if anysimilar taxes.
(c) If the Borrower pays any additional amount under this Section 2.8 4.04 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faithits sole discretion, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, Lender whether to seek a Tax Benefit; (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or defenses; (iii) subject to Section 12.15, nothing in this Section 2.8(c4.04(c) shall require any the Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iiiiv) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c4.04(c) at any time when a Default or Event of Default exists. If in the reasonable opinion of the Borrower, any amount has been paid to, by or on behalf of any Lender pursuant to this Section 4.04 with respect to Taxes which are not correctly or legally asserted, such Lender will (subject, however, to the immediately succeeding proviso and the limitations described in the immediately preceding sentence) cooperate in good faith with the Borrower in identifying any purported Tax Benefit, provided that the rendering of any such cooperation by such Lender would not cause such Lender to incur any out of pocket expense (which is not otherwise paid in full by Borrower prior to or at the time such expense is incurred).
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Net Payments. (a) All payments made to the Lender by the Borrower hereunder under this Agreement, or under any other Financing Loan Document will be made without setoffset off, counterclaim or other similar defense. All such payments by the Borrower will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature (including interest, penalties or similar liabilities) now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, excluding any tax imposed on or measured by the gross or net income, revenue, or gross receipts income of such Lender the Lender) pursuant to the laws of the jurisdiction in which it is organized United States of America or any political subdivision, or taxing authority of the jurisdiction United States of America or any political subdivision, in which the principal office or Applicable Lending Office applicable lending office of such the Lender is located or (collectively, together with any subdivision thereof or therein) and all interestamounts payable pursuant to the next sentence, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of the Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement, under the net amount received by the relevant Financing Party hereunder Note or under any other Financing Loan Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein in this Agreement or in such Financing Document as if the corresponding deduction or withholding had not been madeNote. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date Lender upon request certified copies of the payment of any Taxes due pursuant to applicable law evidence of tax receipts evidencing such payment in form and substance reasonably satisfactory to by the Administrative AgentBorrower. The Borrower agrees to will indemnify and hold harmless each the Lender, and reimburse such the Lender upon its written request, for the amount of any Taxes so levied or imposed and paid or withheld by such the Lender.
(b) Each Lender and Notwithstanding the Administrative Agent agree to complete in good faith and execute and deliver preceding subparagraph (a), the Borrower shall be entitled, to the Borrowerextent required to do so by law, to deduct or withhold Taxes imposed by the United States of America (or any political subdivision or taxing authority thereof) from interest, fees or other amounts payable under this Agreement for the account of any Person other than the Lender (i) that is a domestic corporation (as such term is defined in Section 7701 of the Code) for federal income tax purposes (but excluding any foreign office of the Lender) or (ii) that has necessary forms on file with the Borrower for the applicable year to the extent deduction or withholding of such Taxes is not required as a timely mannerresult of the filing of such forms, such formprovided that if the Borrower shall so deduct or withhold any Taxes, certificatesit shall provide a statement to the Lender, setting forth the amount of the Taxes so deducted or withheld, the applicable rate and any other information or documentation relating which the Lender may reasonably request for assisting the Lender to such Lender obtain any allowable credits or Administrative Agent to establish deductions for the extent to which any payments to such Lender taxes so deducted or Administrative Agent are exempt from, withheld in the jurisdiction or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year jurisdictions in which the additional amount Lender is paid (a “Tax Benefit”), such Lender shall pay subject to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
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Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoff, counterclaim or other similar defense. All such payments The Borrower will be made free pay, prior to the date on which penalties attach thereto, all present and clear offuture income, stamp and without deduction or withholding for, any present or future other taxes, levies, impostsor costs and charges whatsoever imposed, dutiesassessed, feeslevied or collected on or in respect of a Loan and/or the recording, assessments registration, notarization or other formalization thereof and/or any payments of principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs and charges being herein collectively called “Taxes”; provided that Taxes shall not include taxes imposed on or measured by the overall net income of whatever nature now that Lender (or hereafter any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by the United States of America or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed or taxes on or measured by the overall net income (or any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income, revenue, ) of that Lender by any foreign country or gross receipts of such Lender subdivision thereof pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”located). If any Taxes are so levied or imposed, the The Borrower agrees to shall also pay such additional amounts as may be necessary so equal to increases in taxes payable by that Lender described in the foregoing proviso which increases are attributable to payments made by the Borrower described in the immediately preceding sentence of this Section. Promptly after the date on which payment of any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Lender, furnish to that Lender evidence, in form and substance satisfactory to that Lender, that the net amount received by the relevant Financing Party hereunder or Borrower has met its obligation under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madethis Section 4.04. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each LenderLender against, and reimburse such each Lender upon on demand for, any Taxes, as determined by that Lender in its written request, good faith and reasonable discretion. Such Lender shall provide the Borrower with appropriate receipts for any payments or reimbursements made by the amount of any Taxes so levied or imposed and paid by such LenderBorrower pursuant to this Section 4.04.
(b) Each Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes agrees to provide to the Borrower on or prior to the Fourth Restatement Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section 4.04(b)), on the date of such assignment or transfer to such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement or any Note or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit J (any such certificate, a “Section 4.04(b)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement or under any Note. Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is not a corporation (as such term is defined in Section 7701(a)(3) of the Code) for such purposes, agrees to provide to the Borrower on or prior to the Fourth Restatement Effective Date, or in the case of a Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer and such Lender is in compliance with the provisions of this Section 4.04(b)), on the date of such assignment to such Lender, two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor form). In addition, each such Lender agrees that from time to time after the Fourth Restatement Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or W-8BEN (with respect to a claim for benefits of an income tax treaty) or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement or any Note, or it shall immediately notify the Borrower and the Administrative Agent agree of its inability to complete in good faith and execute and deliver any such form. Notwithstanding anything to the Borrowercontrary contained in Section 4.04(a), (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or other similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes and which has not provided to the Borrower such forms that establish a timely manner, complete exemption from such form, certificates, information deduction or documentation relating withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to pay a Lender in respect of income or similar taxes imposed by the United States or any additional amounts with respect thereto if such Lender or Administrative Agent has not provided to establish the extent Borrower the Internal Revenue Service forms required to which any payments be provided to such Lender or Administrative Agent are exempt from, or are entitled the Borrower pursuant to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”this Section 4.04(b). Notwithstanding anything to the contrary herein, neither any Lender nor contained in the Administrative Agent shall be required to provide any Forms pursuant to preceding sentence or elsewhere in this Section 2.8(b4.04, the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in Section 4.04(a) unless (iwithout regard to the identity of the jurisdiction requiring the deduction or withholding) such Forms are required in respect of any amounts deducted or withheld by law it as described in the immediately preceding sentence as a condition toresult of any changes after the Fourth Restatement Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or evidence in the interpretation thereof, relating to the deducting or withholding of entitlement to, relief income or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if anysimilar taxes.
(c) If the Borrower pays any additional amount under this Section 2.8 4.04 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faithits sole discretion, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction (including through the expiration of any tax credit carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which such Lender has made a payment to the Borrower pursuant to this Section 4.04(c) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this Section 4.04 without any exclusions or defenses; (iii) subject to Section 12.15, nothing in this Section 2.8(c4.04(c) shall require any the Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iiiiv) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c4.04(c) at any time when a Default or Event of Default exists. If in the reasonable opinion of the Borrower, any amount has been paid to, by or on behalf of any Lender pursuant to this Section 4.04 with respect to Taxes which are not correctly or legally asserted, such Lender will (subject, however, to the immediately succeeding proviso and the limitations described in the immediately preceding sentence) cooperate in good faith with the Borrower in identifying any purported Tax Benefit, provided that the rendering of any such cooperation by such Lender would not cause such Lender to incur any out of pocket expense (which is not otherwise paid in full by Borrower prior to or at the time such expense is incurred).
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Net Payments. (a) All payments made by the Borrower any Obligor hereunder or under any other Financing Document Note or any Guarantee will be made without setoff, counterclaim or other similar defense. All Except as provided in Section 5.06(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature Taxes now or hereafter imposed by any jurisdiction Governmental Authority or by any political politi cal subdivision or taxing authority ta▇▇▇▇ ▇▇▇▇▇rity thereof or therein with respect to such payments (but excludingexcluding any Excluded Tax) and all interest, in penalties or similar liabilities with respect thereto (all such Taxes (other than Excluded Taxes) being referred to collectively as "Covered Taxes"). If any Covered Taxes are so levied or imposed, each Obligor agrees on a joint and several basis to pay the case full amount of such Covered Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement, the Guarantees or under any Note, after withholding or deduction for or on account of any Covered Taxes, will not be less than the amount provided for herein or in such Note. If any amounts are payable in respect of Covered Taxes pursuant to the preceding sentence, each Obligor agrees, notwithstanding the definition of Excluded Taxes, to reimburse on a joint and several basis each Lender, any tax upon the written request of such Lender, (i) for Taxes imposed on or measured by the net income, revenue, income or gross receipts net profits of such Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or under the laws of any political subdivision thereof or thereintaxing authority of any such jurisdiction by reason of the making of payments in respect of Covered Taxes pursuant to this Section (including pursuant to this sentence) and all interest(ii) for any withholding of Taxes as such Lender shall determine are payable by, penalties or similar liabilities with withheld from, such Lender in respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred of amounts paid in respect of Covered Taxes to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account behalf of such Lender pursuant to the preceding sentence and in respect of any Taxes, will not be less than the amount provided for herein amounts paid to or in on behalf of such Financing Document as if the corresponding deduction or withholding had not been madeLender pursuant to this sentence. The Borrower Each Obligor will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence certified copies of such payment in form and substance tax receipts or other documentation reasonably satisfactory to the Administrative Agentsuch Lender evidencing such payment by such Obligor. The Borrower agrees Obligors agree to jointly and severally indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Covered Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree any liability (including penalties, additions to complete in good faith tax, interest and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(bexpenses) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in arising therefrom or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default existsthereto.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoffsetoff or counterclaim. The Borrower will pay, counterclaim or prior to the date on which penalties attach thereto, all present and future income, stamp and other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, impostsor costs and charges whatsoever imposed, dutiesassessed, feeslevied or collected on or in respect of a Loan and/or the recording, assessments registration, notarization or other formalization thereof and/or any payments of principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs and charges being herein collectively called "Taxes"; PROVIDED that Taxes shall not include taxes imposed on or measured by the overall net income of whatever nature now that Bank (or hereafter any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by the United States of America or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingtherein, in taxes imposed under Section 884 of the case of any Lender, any tax imposed Code or taxes on or measured by the overall net income (or any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) of that Bank or any foreign office, revenue, branch or gross receipts subsidiary of such Lender pursuant to the laws of the jurisdiction that Bank by any foreign country or subdivision thereof in which it that Bank or that office, branch or subsidiary is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”doing business). If any Taxes are so levied or imposed, the The Borrower agrees to shall also pay such additional amounts as may be necessary so equal to increases in taxes payable by that Bank described in the foregoing proviso which increases are attributable to payments made by the Borrower described in the immediately preceding sentence of this Section. Promptly after the date on which payment of any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Bank, furnish to that Bank evidence, in form and substance satisfactory to that Bank, that the net amount received by the relevant Financing Party hereunder or Borrower has met its obligation under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madethis Section 3.04. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each LenderBank against, and reimburse such Lender upon each Bank on demand for, any Taxes, as determined by that Bank in its written request, good faith and reasonable discretion. Such Bank shall provide the Borrower with appropriate receipts for any payments or reimbursements made by the amount of any Taxes so levied or imposed and paid by such LenderBorrower pursuant to this Section 3.04.
(b) Each Lender Bank which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes agrees to provide to the Borrower on or prior to the Effective Date, or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer and such Bank is in compliance with the provisions of this Section 3.04(b)), on the date of such assignment or transfer to such Bank, two accurate and complete original signed copies of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Service Form W-8 ECI or Form W-8 BEN (or successor forms) certifying to such Bank's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement or any Note. Each Bank that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is not a corporation (as such term is defined in Section 7701(a)(3) of the Code) for such purposes, agrees to provide to the Borrower on or prior to the Effective Date, or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer and such Bank is in compliance with the provisions of this Section 3.04(b)), on the date of such assignment to such Bank, two accurate and complete original signed copies of Internal Revenue Service Form W-9 (or successor form). In addition, each such Bank 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, it will deliver to the Borrower two new accurate and complete original signed copies of Internal Revenue Service Form W-8 ECI or Form W-8 BEN, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Bank to a continued exemption from United States withholding tax with respect to payments under this Agreement or any Note, or it shall immediately notify the Borrower and the Administrative Agent agree of its inability to complete in good faith and execute and deliver to the Borrower, in a timely manner, any such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary hereincontained in Section 3.04(a), neither any Lender nor (x) the Administrative Agent Borrower shall be entitled, to the extent it is required to provide do so by law, to deduct or withhold income or other similar taxes imposed by the United States (or any Forms political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Bank which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes and which has not provided to the Borrower such forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 3.04(a) to pay a Bank in respect of income or similar taxes imposed by the United States or any additional amounts with respect thereto if such Bank has not provided to the Borrower the Internal Revenue Service forms required to be provided to the Borrower pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any3.04(b).
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or ------------ under any other Financing Document Note will be made without setoff, counterclaim or other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, value-added taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lenderexcept as provided below, any tax imposed on or measured by the net income, revenue, or gross receipts income of such the Lender pursuant to the laws of the jurisdiction in which it is organized (or the jurisdiction any political subdivision or taxing authority thereof or therein) in which the principal office or Applicable Lending Office lending office of such the Lender is located or any subdivision thereof or thereinlocated) and all interest, penalties or similar liabilities with respect thereto (collectively, "Taxes"). If any amounts are payable in respect of Taxes pursuant to the preceding sentence, then the Borrower shall also reimburse the Lender, upon the written request of the Lender, for all such nonvalue-excluded taxes, levies, imposts, duties, fees, assessments added and other taxes imposed on or other charges being referred measured by the net income of the Lender pursuant to collectively the laws of the jurisdiction (or any political subdivision or taxing authority thereof or therein) in which the principal office or lending office of the Lender is located as “Taxes”)the Lender shall determine are payable by the Lender in respect of amounts paid to or on behalf of the Lender pursuant to the preceding sentence. If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party every payment of all amounts due hereunder or under any other Financing Documentthe Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madeNote. The Borrower will furnish to the Administrative Agent Lender within thirty (30) 45 days after the date of the payment of any Taxes is due pursuant to applicable law evidence certified copies of tax receipts evidencing such payment in form and substance reasonably satisfactory to by the Administrative AgentBorrower. The Borrower agrees to will indemnify and hold harmless each the Lender, and reimburse such the Lender upon its written request, for the amount of any Taxes so or other taxes described above which are levied or imposed on and paid by such Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or and under any other Financing Document Note will be made without setoff, counterclaim or other similar defense. All such payments will be made free and clear of, and without deduction or withholding forfor Taxes, any present unless such deduction or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed withholding is required by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed on or measured by the net income, revenue, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”)law. If any applicable law requires the deduction or withholding of any Tax from any such payment by the Borrower or the applicable withholding agent, then the Borrower and/or the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant governmental authority in accordance with applicable law. If any such Taxes are so levied or imposedIndemnified Taxes, the Borrower agrees to pay the full amount of such Indemnified Taxes, and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder every payment of all amounts due under this Agreement or under any other Financing DocumentNote, after withholding or deduction for or on account of any such Indemnified Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding Note had no such withholding or deduction or withholding had not been made. The Borrower will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Taxes is due pursuant to applicable law certified copies of tax receipts (or such other evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent) evidencing such payment by the Borrower (to the extent Borrower is responsible for making such withholding or deduction). The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Indemnified Taxes so levied or imposed and paid by such Lender.
(b) The Borrower 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.
(c) 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 13.04(a) 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 delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (c).
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made hereunder or under any Note shall deliver to the Borrower and the Administrative Agent agree to complete in good faith and execute and deliver to Agent, at the Borrower, in a timely mannertime or times reasonably requested by the Borrower or the Administrative Agent, such formproperly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, certificatesany Lender, information if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation relating to such Lender prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to establish the extent to which any payments to determine whether or not such Lender or Administrative Agent are exempt from, or are entitled is subject to a reduction of backup withholding or deduction of any Taxes (collectively, the “Forms”)information reporting requirements. Notwithstanding anything to the contrary hereinin the immediately preceding two sentences, neither the completion, execution and submission of such documentation (other than such documentation set forth in Section 5.04(d)(ii) 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, to the extent it is legally entitled, each Lender nor 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 (other than a Lender that may be treated as an exempt recipient under Treasury Regulations Section 1.6049-4(c)(1)(ii), subject to the provisions of Treasury Regulations Section 1.1441-1(d)(4)) agrees to deliver to the 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 13.04(b) (unless the 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, an Internal Revenue Service Form W-9. To the extent it is legally entitled, 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 (“Foreign Lender”) and not described in the succeeding sentence (regarding Internal Revenue Service Form W-8IMY) agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date or, in the case of a Lender that is an assignee under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment), on the date of such assignment or transfer to such Lender, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption or reduction under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption or reduction in from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or any successor forms) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit D (any such certificate, a “Section 5.04(d)(ii) Certificate”) and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In the case of a Foreign Lender that is not the beneficial owner of payments made under this Agreement or any Note (including a partnership or a participating Lender), such Foreign Lender shall deliver to the 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 13.04(b) (unless the 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, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8IMY on behalf of itself and (ii) the relevant forms prescribed in the preceding two sentences as applicable that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender. In addition, if a payment made to a Foreign Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Foreign 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 Foreign Lender 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 Foreign Lender has complied with such Foreign Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. 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 certification or forms in the preceding sentences obsolete or inaccurate in any material respect, such Lender will deliver to the Borrower and the Administrative Agent two new accurate and complete original signed copies of Internal Revenue Service Form W-9, Form W-8ECI, Form W-8BEN (with respect to the benefits of any income tax treaty), Form W-8BEN (with respect to the portfolio interest exemption) and a Section 5.04(d)(ii) Certificate or Internal Revenue Service Form W-8IMY (together with all underlying forms), as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or such Lender shall immediately notify the 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 provide deliver any Forms such Form or Certificate pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any5.04(d).
(ce) If the Borrower pays any additional amount under this Section 2.8 5.04 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, of its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”)liabilities, such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefitrefund; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; refund, (ii) any Taxes that are imposed on a Lender as a result of a disallowance or reduction of any refund with respect to which such Lender has made a payment to the Borrower pursuant to this Section 5.04(e) shall be treated as a Tax for which the Borrower is obligated to indemnify such Lender pursuant to this Section 5.04 without any exclusions or defenses, (iii) nothing in this Section 2.8(c5.04(e) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); , and (iiiiv) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c5.04(e) at any time when a Default or an Event of Default exists.
Appears in 1 contract
Sources: Credit Agreement (Town Sports International Holdings Inc)
Net Payments. (a) All payments made by the Borrower Issuers hereunder or under any other Financing Document Note will be made without setoff, counterclaim or other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, value-added taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lenderexcept as provided below, any tax imposed on or measured by the net income, revenue, or gross receipts income of such Lender a Purchaser pursuant to the laws of the jurisdiction in which it is organized (or the jurisdiction any political subdivision or taxing authority thereof or therein) in which the principal office or Applicable Lending Funding Office of such Lender Purchaser is located or and any subdivision thereof or thereinjurisdiction which would have legal power to tax the net income of a Purchaser if such Purchaser had not made any Advance to the Issuers) and all interest, penalties or similar liabilities with respect thereto (collectively, "Taxes"). The Issuers shall also reimburse each Purchaser, upon the written request of such Purchaser, for all other taxes imposed on or measured by the net income of such non-excluded taxes, levies, imposts, duties, fees, assessments Purchaser pursuant to the laws of the jurisdiction (or other charges being referred any political subdivision or taxing authority thereof or therein) in which the principal office or Funding Office of such Purchaser is located as such Purchaser shall determine are payable by such Purchaser in respect of amounts paid to collectively as “Taxes”)or on behalf of such Purchaser pursuant to the preceding sentence. If any Taxes are so levied or imposed, the Borrower agrees Issuers agree to pay the full amount of such Taxes and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party every payment of all amounts due hereunder or under any other Financing DocumentNote, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madeNote. The Borrower Issuers will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Taxes is due pursuant to applicable law evidence Law certified copies of tax receipts evidencing such payment by the Issuers (provided, that if any such receipts cannot be obtained within 45 days, the Issuers will furnish such receipts as soon as reasonably practicable). Argentine value-added tax or any tax imposed in form and substance reasonably satisfactory replacement thereof will be invoiced directly to the Administrative AgentIssuers by each Purchaser which is an Argentine financial institution or whose Funding Office is located in Argentina, and the Issuer will pay such tax directly to such Purchaser upon receipt of any such invoice. The Borrower agrees to Issuers will indemnify and hold harmless each LenderPurchaser, and reimburse such Lender Purchaser upon its written request, for the amount of any Taxes so or other taxes described above which are levied or imposed on and paid by such LenderPurchaser.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document Note will be made without setoff, counterclaim or other similar defense. All Except as provided in Section 2.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, except as provided in the case of any Lendersecond succeeding sentence, any tax imposed on or measured by the net income, revenue, or gross receipts income of such a Lender pursuant to the laws of the jurisdiction or any political subdivision or taxing authority thereof or therein in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such Lender is located or any subdivision thereof or thereinlocated) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxescollectively, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Taxes”"). If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party every payment of all amounts due hereunder or under any other Financing DocumentNote, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, then the Borrower shall be obligated to reimburse each Lender, upon the written request of such Lender, for taxes imposed on or measured by the net income of such Lender pursuant to the laws of the jurisdiction or any political subdivision or taxing authority thereof or therein in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as if such Lender shall determine are payable by or withheld from such Lender in respect of such amounts so paid to or on behalf of such Lender pursuant to the corresponding deduction preceding sentence and in respect of any amounts paid to or withholding had not been madeon behalf of such Lender pursuant to this sentence. The Borrower will furnish to the Administrative Agent each Lender within thirty (30) 45 days after the date of the payment of any Taxes due pursuant to applicable law evidence certified copies of tax receipts evidencing such payment in form and substance reasonably satisfactory to by the Administrative AgentBorrower. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and that is not a United States person (as such term is defined in Section 7701(a)(30) of the Administrative Agent agree Code) agrees to complete in good faith and execute and deliver to the BorrowerBorrower 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 10.04 (unless the 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, (i) two accurate and complete original signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) (or successor forms) certifying to such Lender's entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN (with respect to a complete exemption under an income tax treaty) pursuant to clause (i) above, (x) a certificate substantially in the form of Exhibit F (any such certificate, a "Section 2.04(b)(ii) Certificate") and (y) two accurate and complete original signed copies of Internal Revenue Service Form W-8BEN (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender's entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note. In addition, each Lender agrees that from time to time after the Closing Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, it will deliver to the Borrower two new accurate and complete original signed copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to a complete exemption under an income tax treaty) or Form W-8BEN (with respect to the portfolio interest exemption) and a Section 2.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or it shall immediately notify the Borrower of its inability to deliver any such Form or Certificate, in a timely manner, such form, certificates, information or documentation relating to which case such Lender shall not be required to deliver any such Form or Administrative Agent Certificate pursuant to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”this Section 2.04(b). Notwithstanding anything to the contrary hereincontained in Section 2.04(a), neither but subject to the immediately succeeding sentence, (x) the Borrower shall be entitled, to the extent it is required to do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Lender nor that is not a United States person (as such term is defined in Section 7701(a)(30) of the Administrative Agent Code) for U.S. Federal income tax purposes to the extent that such Lender has not provided to the Borrower U.S. Internal Revenue Service Forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 2.04(a) hereof to gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the United States if (I) such Lender has not provided to the Borrower the Internal Revenue Service Forms required to provide any Forms be provided to the Borrower pursuant to this Section 2.8(b2.04(b) unless or (iII) such Forms are required by law as in the case of a condition topayment, or evidence of entitlement toother than interest, relief or exemption to a Lender described in whole or in part from any Taxes, clause (ii) such Lender or above, to the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting extent that such Lender or the Administrative Agent execute and deliver forms do not establish a complete exemption from withholding of such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect taxes. Notwithstanding anything to the taxable year contrary contained in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing preceding sentence or elsewhere in this Section 2.8(c2.04, the Borrower agrees to pay additional amounts and to indemnify each Lender in the manner set forth in Section 2.04(a) shall require any Lender to disclose any confidential information (without regard to the Borrower (including, without limitation, its tax returns); and (iiiidentity of the jurisdiction requiring the deduction or withholding) no Lender shall be required to pay in respect of any amounts pursuant deducted or withheld by it as described in the immediately preceding sentence as a result of any changes after the Closing Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to this Section 2.8(c) at any time when a Default the deducting or Event withholding of Default existsincome or similar Taxes.
Appears in 1 contract
Net Payments. (a) All payments made by under this Term Loan Agreement, the Borrower hereunder or under Term Note and/or any other Financing Term Loan Document will shall be made without setoffset-off or counterclaim and in such amounts as may be necessary in order that all such payments, counterclaim or other similar defense. All such payments will be made free and clear of, and without after deduction or withholding for, for or on account of any present or future taxes, levies, imposts, duties, fees, assessments duties or other charges of whatever whatsoever nature now or hereafter imposed by the United States or any jurisdiction Governmental Authority, other than franchise taxes or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed on or measured by the net income, revenue, or gross receipts or overall net income of such any Term Lender pursuant to the income tax laws of the jurisdiction in which it is organized United States or any State, or the jurisdiction in which the where Term Lender's principal office is located (collectively "Taxes"), shall not be less than the amounts otherwise specified to be paid under this Term Loan Agreement and the Term Note. A certificate as to any additional amounts payable to the Term Lender under this Section 2.11 submitted to the Borrower by the Term Lender shall show in reasonable detail an accounting of the amount payable and the calculations used to determine in good faith such amount and shall be conclusive absent manifest or Applicable Lending Office demonstrable error. Any amounts payable by the Borrower under this Section 2.11 with respect to past payments shall be due within ten (10) days following receipt by the Borrower of such Lender is located or certificate from the Term Lender; any subdivision thereof or therein) and all interest, penalties or similar liabilities such amounts payable with respect thereto to future payments shall be due within ten (all 10) days after demand with such non-excluded taxes, levies, imposts, duties, fees, assessments future payments. With respect to each deduction or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been made. The Borrower will shall promptly furnish to the Administrative Agent within thirty Term Lender such certificates, receipts and other documents as may be required (30) days after in the date reasonable judgment of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Term Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent any tax credit to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Term Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default existsentitled.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document the Term Note will be made without setoff, counterclaim or other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature ("Taxes") now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lenderexcept as provided below, any tax Tax imposed on or measured by the net income, revenue, or gross receipts income of such the Lender pursuant to the laws of the jurisdiction in which it is organized (or the jurisdiction any political subdivision or taxing authority thereof or therein) in which the principal office or Applicable Lending Office of such the Lender is located or (any subdivision thereof or thereinsuch Tax, an "Excluded Tax")) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxesTaxes, leviesother than Excluded Taxes, imposts, duties, fees, assessments or other charges being referred to collectively herein as “"Covered Taxes”"). If any Covered Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Covered Taxes and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party every payment of all amounts due hereunder or under any other Financing Documentthe Term Note, after withholding or deduction for or on account of any Covered Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madeTerm Note. The Borrower will furnish to the Administrative Agent Lender, within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence law, certified copies of tax receipts evidencing such payment in form and substance reasonably satisfactory to by the Administrative AgentBorrower. The Borrower agrees to will indemnify and hold harmless each the Lender, and reimburse such the Lender upon its the Lender's written requestrequest setting forth in reasonable detail the amounts owing and the method by which they have been determined, for the amount of any Covered Taxes so levied or imposed and paid by the Lender. The Lender agrees to take such Lender.
(b) Each Lender and commercially reasonable steps as may be necessary to minimize the Administrative Agent agree to complete in good faith and execute and deliver to amount of any Covered Taxes levied or imposed upon any payments made by Borrower hereunder or under the BorrowerTerm Note so long as such steps do not, in a timely mannerthe Lender's sole judgement, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish materially adversely affect any of the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectivelyLender's rights under this Agreement, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund Term Note or any reduction of, or credit against, its Tax liabilities in or with respect to of the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default existsother Credit Documents.
Appears in 1 contract
Sources: Credit Agreement (Atlas Air Worldwide Holdings Inc)
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoff, counterclaim or other similar defense. All such payments The Borrower will be made free pay, prior to the date on which penalties attach thereto, all present and clear offuture income, stamp and without deduction or withholding for, any present or future other taxes, levies, impostsor costs and charges whatsoever imposed, dutiesassessed, feeslevied or collected on or in respect of a Loan and/or the recording, assessments registration, notarization or other formalization thereof and/or any payments of principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs and charges being herein collectively called "Taxes"; provided that Taxes shall not include taxes imposed on or measured by the overall net income of whatever nature now that Lender (or hereafter any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by the United States of America or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed or taxes on or measured by the overall net income (or any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income, revenue, ) of that Lender by any foreign country or gross receipts of such Lender subdivision thereof pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office applicable lending office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”located). If any Taxes are so levied or imposed, the The Borrower agrees to shall also pay such additional amounts as may be necessary so equal to increases in taxes payable by that Lender described in the foregoing proviso which increases are attributable to payments made by the Borrower described in the immediately preceding sentence of this Section. Promptly after the date on which payment of any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Lender, furnish to that Lender evidence, in form and substance satisfactory to that Lender, that the net amount received by the relevant Financing Party hereunder or Borrower has met its obligation under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madethis Section 4.04. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each LenderLender against, and reimburse such each Lender upon on demand for, any Taxes, as determined by that Lender in its written request, good faith and reasonable discretion. Such Lender shall provide the Borrower with appropriate receipts for any payments or reimbursements made by the amount of any Taxes so levied or imposed and paid by such LenderBorrower pursuant to this Section 4.04.
(b) Each Lender and which is not a United States person (as such term is defined in Section 7701(a)(30) of the Administrative Agent agree Code) for United States federal income tax purposes agrees to complete in good faith and execute and deliver provide to the BorrowerBorrower on or prior to the Third Restatement Effective Date, or in the case of a timely manner, such form, certificates, information Lender that is an assignee or documentation relating transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Lender was already a Lender hereunder immediately prior to such Lender assignment or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender transfer and such Lender determines is in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent compliance with the policies provisions of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.this
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder to or under for the benefit of any other Financing Document will Lender or the Agent shall be made without setoff, counterclaim or other similar defense. All Except as provided in Subsection 3.9.2 (b) below, all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments assessments, or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, excluding any tax imposed on or measured by the net incomeincome or profits of the Lender or the Agent, revenueas the case may be, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or thereinorganized) and together with all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxescollectively, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Covered Taxes”"). If Borrower shall be required by law to deduct any Covered Taxes are so levied from any sum payable hereunder to any Lender or imposedthe Agent, (A) the Borrower agrees to pay such additional amounts sum payable shall be increased as may be necessary so that after making all required deductions of Covered Taxes (including deductions of Covered Taxes applicable to additional sums payable under this Section such Lender or the net Agent, as the case may be, receives an amount equal to the sum it would have received by had no such deductions been made, (B) Borrower shall make such deductions and (C) Borrower shall pay the full amount so deducted to the relevant Financing Party hereunder taxation authority or under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or authority in such Financing Document as if the corresponding deduction or withholding had not been madeaccordance with applicable law. The Borrower will shall furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence certified copies of tax receipts evidencing such payment in form and substance reasonably satisfactory to the Administrative Agentby Borrower. The Borrower agrees to indemnify and hold harmless each Lender, the Lenders and the Agent and reimburse such Lender upon its written requesteach of them, as the case may be, for the amount of any Covered Taxes so levied or imposed and paid by such Lenderthem.
(b) Each Lender and which is organized under the Administrative Agent agree to complete in good faith and execute and laws of a jurisdiction other than the United States or any State thereof (a "Foreign Lender") shall deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless and Borrower (i) two valid, duly completed copies of IRS Form W-8ECI and W-8BEN or successor applicable form, as the case may be, and any other required form, certifying in each case that such Forms are Foreign Lender is entitled to receive payments under this Agreement and the Revolving Loan Notes payable to it without deduction or withholding of any United States federal income taxes or with such withholding imposed at a reduced rate (the "Reduced Rate"), or (ii) a valid, duly completed IRS Form W-8 or W-9 or successor applicable form, as the case may be, to establish an exemption from United States backup withholding tax. Each such Lender shall also deliver to Agent and Borrower two further copies of said Form W-8ECI or W-8BEN and W-8 or W-9, or successor applicable forms, or other manner of required by law certification, as the case may be, on or before the date that any such form expires or becomes obsolete or otherwise is required to be resubmitted as a condition toto obtaining an exemption from a required withholding of United States federal income tax or entitlement to having such withholding imposed at the Reduced Rate or after the occurrence of any event requiring a change in the most recent form previously delivered by it to Borrower and Agent, and such extensions or renewals thereof as may reasonably be requested by Borrower and Agent, certifying (i) in the case of a Form W-8ECI or W-8BEN that such Lender is entitled to receive payments under this Agreement and the Revolving Loan Notes payable to it without deduction or withholding of any United States federal income taxes, unless in any such case any change in a tax treaty to which the United States is a party, or evidence any change in law or regulation of entitlement tothe United States or official interpretation thereof has occurred after the Closing Date and prior to the date on which any such delivery would otherwise be required that renders all such forms inapplicable or that would prevent such Foreign Lender from duly completing and delivering any such form with respect to it, relief and such Foreign Lender advises the Borrower and the Agent that it is not capable of receiving payments without any deduction or exemption in whole withholding at the Reduced Rate, or in part from any Taxes, (ii) such Lender in the case of a Form W-8 or the Administrative Agent is legally entitled to completeW-9, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if anyestablishing an exemption from United States backup withholding tax.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document the Note will be made without setoff, counterclaim or other similar defense; provided, further, that for the purpose of this Section 3.04(a), "payment" shall be deemed to include, without limitation, the issuance of UTC Common Stock. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, except as provided in the case of any Lendersecond succeeding sentence, any tax imposed on or measured by the net income, revenue, income or gross receipts profits of such the Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such the Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto to such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “"Taxes”"). If any Taxes are so levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder every payment of all amounts due under this Agreement or under any other Financing Documentthe Note, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in the Note. If any amounts are payable in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse the Lender, within three Business Days after the written request of the Lender, for taxes imposed on or measured by the net income or profits of the Lender pursuant to the laws of the jurisdiction in which the Lender is organized or in which the principal office or applicable lending office of the Lender is located or under the laws of any political subdivision or taxing authority of any such Financing Document jurisdiction in which the Lender is organized or in which the principal office or applicable lending office of the Lender is located and for any withholding of taxes as if the corresponding deduction Lender shall determine are payable by, or withholding had not been madewithheld from, the Lender, in respect of such amounts so paid to or on behalf of the Lender pursuant to the preceding sentence and in respect of any amounts paid to or on behalf of the Lender pursuant to this sentence. The Borrower will furnish to the Administrative Agent Lender within thirty (30) 30 days after the date of the payment of any Taxes is due pursuant to applicable law evidence certified copies of tax receipts evidencing such payment in form and substance reasonably satisfactory to by the Administrative AgentBorrower. The Borrower agrees to indemnify and hold harmless each the Lender, and reimburse such the Lender upon within three Business Days after its written request, for the amount of any Taxes so levied or imposed and paid by such the Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 3.04 to a the Lender and such the Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “"Tax Benefit”"), such the Lender shall pay to the Borrower an amount that the Lender shall, in good faithits sole discretion, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any the Lender may determine, determine in its sole discretion consistent with the policies of such Lender, the Lender whether to seek a Tax Benefit; , (ii) any Taxes that are imposed on the Lender as a result of a disallowance or reduction (including through the expiration of any tax carryover or carryback of such Lender that otherwise would not have expired) of any Tax Benefit with respect to which the Lender has made a payment to the Borrower pursuant to this Section 3.04(b) shall be treated as a Tax for which the Borrower is obligated to indemnify the Lender pursuant to this Section 3.04 without any exclusions or defenses, (iii) nothing in this Section 2.8(c3.04(b) shall require any the Lender to disclose any confidential information to the Borrower (including, without limitation, its the Lender's tax returns); , and (iiiiv) no the Lender shall not be required to pay the Borrower any amounts pursuant to this Section 2.8(c3.04(b) at any time when that a Default or Event of Specified Default exists.
Appears in 1 contract
Sources: Credit Agreement (Emcore Corp)
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document ------------ will be made without setoffsetoff or counterclaim. The Borrower will pay, counterclaim or prior to the date on which penalties attach thereto, all present and future income, stamp and other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, impostsor costs and charges whatsoever imposed, dutiesassessed, feeslevied or collected on or in respect of a Loan and/or the recording, assessments registration, notarization or other formalization thereof and/or any payments of principal, interest or other amounts made on or in respect of a Loan (all such taxes, levies, costs and charges being herein collectively called "Taxes"; provided that Taxes shall not include taxes imposed on or measured by the -------- overall net income of whatever nature now that Bank (or hereafter any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) by the United States of America or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingtherein, in taxes imposed under Section 884 of the case of any Lender, any tax imposed Code or taxes on or measured by the overall net income (or any alternative tax imposed generally by any relevant jurisdiction in lieu of a tax on net income) of that Bank or any foreign office, revenue, branch or gross receipts subsidiary of such Lender pursuant to the laws of the jurisdiction that Bank by any foreign country or subdivision thereof in which it that Bank or that office, branch or subsidiary is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”doing business). If any Taxes are so levied or imposed, the The Borrower agrees to shall also pay such additional amounts as may be necessary so equal to increases in taxes payable by that Bank described in the foregoing proviso which increases are attributable to payments made by the Borrower described in the immediately preceding sentence of this Section. Promptly after the date on which payment of any such Tax is due pursuant to applicable law, the Borrower will, at the request of that Bank, furnish to that Bank evidence, in form and substance satisfactory to that Bank, that the net amount received by the relevant Financing Party hereunder or Borrower has met its obligation under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madethis Section 3.04. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each LenderBank against, and reimburse such Lender upon each Bank on demand for, any Taxes, as determined by that Bank in its written request, good faith and reasonable discretion. Such Bank shall provide the Borrower with appropriate receipts for any payments or reimbursements made by the amount of any Taxes so levied or imposed and paid by such LenderBorrower pursuant to this Section 3.04.
(b) Each Lender Bank which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes agrees to provide to the Borrower on or prior to the Effective Date, or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer and such Bank is in compliance with the provisions of this Section 3.04(b)), on the date of such assignment or transfer to such Bank, two accurate and complete original signed copies of Internal Revenue Service Form 4224 or 1001 (or succes- sor forms) certifying to such Bank's entitlement to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement or any Note. Each Bank that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for Federal income tax purposes, but that is not a corporation (as such term is defined in Section 7701(a)(3) of the Code) for such purposes, agrees to provide to the Borrower on or prior to the Effective Date, or in the case of a Bank that is an assignee or transferee of an interest under this Agreement pursuant to Section 1.14 or Section 12.04 (unless the respective Bank was already a Bank hereunder immediately prior to such assignment or transfer and such Bank is in compliance with the provisions of this Section 3.04(b)), on the date of such assignment to such Bank, two accurate and complete original signed copies of Internal Revenue Service Form W- 9 (or successor form). In addition, each such Bank 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, it will deliver to the Borrower two new accurate and complete original signed copies of Internal Revenue Service Form 4224 or 1001, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Bank to a continued exemption from United States withholding tax with respect to payments under this Agreement or any Note, or it shall immediately notify the Borrower and the Administrative Agent agree of its inability to complete in good faith and execute and deliver to the Borrower, in a timely manner, any such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary hereincontained in Section 3.04(a), neither any Lender nor (x) the Administrative Agent Borrower shall be entitled, to the extent it is required to provide do so by law, to deduct or withhold income or other similar taxes imposed by the United States (or any Forms political subdivision or taxing authority thereof or therein) from interest, fees or other amounts payable hereunder for the account of any Bank which is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for United States federal income tax purposes and which has not provided to the Borrower such forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 3.04(a) to pay a Bank in respect of income or similar taxes imposed by the United States or any additional amounts with respect thereto if such Bank has not provided to the Borrower the Internal Revenue Service forms required to be provided to the Borrower pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any3.04(b).
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Sources: Credit Agreement (RJR Nabisco Inc)
Net Payments. (a) All payments made by the Borrower hereunder or under any other Financing Document will be made without setoff, counterclaim or other similar defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of any Lender, any tax imposed on or measured by the net income, revenue, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or therein) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been made. The Borrower will furnish to the Administrative Agent within thirty (30) days after the date of the payment of any Taxes due pursuant to applicable law evidence of such payment in form and substance reasonably satisfactory to the Administrative Agent. The Borrower agrees to indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree to complete in good faith and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(b) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default exists.
Appears in 1 contract
Sources: Credit Agreement (Nii Holdings Inc)
Net Payments. (a) All payments made by the Borrower any Credit Party hereunder or and under any other Financing Document Note will be made without setoff, counterclaim or other similar defense. All Except as provided in Section 4.04(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excluding, in the case of excluding any Lender, any tax imposed on or measured by the net income, revenue, or gross receipts of such Lender pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or any subdivision thereof or thereinExcluded Taxes) and all interest, penalties or similar liabilities with respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees Credit Parties agree to pay the full amount of such Taxes, and such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder every payment of all amounts due under this Agreement or under any other Financing DocumentNote, after withholding or deduction for or on account of any Taxes, will not be less than the amount provided for herein or in such Financing Document as if the corresponding deduction or withholding had not been madeNote. The Borrower 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. Without duplication, if any amounts are payable in respect of Taxes pursuant to the two preceding sentences, the applicable Credit Party agrees to reimburse each Lender within 15 Business Days of receipt of the written request of such Lender, including documentation reasonably supporting such request for such Taxes as are payable by, or withheld from, such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to the two preceding sentences and in respect of any amounts paid to or on behalf of such Lender pursuant to this sentence. The applicable Credit Party will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Taxes is due pursuant to applicable law evidence certified copies of tax receipts or other documentation reasonably evidencing such payment in form and substance reasonably satisfactory to the Administrative Agentby such Credit Party. The Borrower agrees Credit Parties agree to indemnify and hold harmless each Lender, Recipient and reimburse such Lender Recipient upon its written request, for the amount of any Taxes so levied or imposed and paid by such Recipient. A certificate as to the amount of such payment or liability delivered to the 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 demonstrable error.
(b) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) (a “Foreign Lender”) for U.S. federal income tax purposes agrees to deliver to the Borrower and the Administrative Agent agree 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 12.04(b) (unless the 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, as applicable, (i) two accurate and complete original signed copies of IRS Form W-8ECI, Form W-8IMY (together with any applicable underlying forms) Form W-8BEN or Form W-8BEN-E (or successor forms) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Note, or (ii) in good faith the case of a Foreign Lender claiming exemption from or reduction in U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest,” two accurate and execute complete original signed copies of IRS Form W-8BEN or Form W-8BEN-E (or successor form) certifying to such Lender’s entitlement as of such date to a complete exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Note, a certificate substantially in the form of Exhibit D (any such certificate, a “Section 4.04(b)(ii) Certificate”) representing that such Foreign Lender (1) is not a bank for purposes of Section 881(c)(3)(A) of the Code, (2) is not a 10 percent shareholder (within the meaning of Section 881(c)(3)(B) of the Code) of the Borrower or any of its Subsidiaries, and (3) is not a controlled foreign corporation related to the Borrower or any of its Subsidiaries (within the meaning of Section 881(c)(3)(C) of the Code). In addition, each Lender agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders any of the previous certifications obsolete or inaccurate in any material respect, such Lender will deliver to the BorrowerBorrower and the Administrative Agent two new accurate and complete original signed copies of IRS Form W-8ECI, Form W-8IMY, Form W-8BEN or Form W-8BEN-E (with respect to the benefits of any income tax treaty), or Form W-8BEN or Form W-8BEN-E (with respect to the portfolio interest exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such other forms as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding tax with respect to payments under this Agreement and any Note, or such Lender shall immediately notify the Borrower and the Administrative Agent of its inability to deliver any such Form or Certificate, in a timely manner, such form, certificates, information or documentation relating to which case such Lender shall not be required to deliver any such Form or Administrative Agent Certificate pursuant to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”this Section 4.04(b). Notwithstanding anything to the contrary hereincontained in Section 4.04(a), neither any Lender nor but subject to Section 12.04(b) and the immediately succeeding sentence, (x) the Borrower and the Administrative Agent shall be entitled, to the extent it is required to provide do so by law, to deduct or withhold income or similar taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein) from interest, Fees or other amounts payable hereunder for the account of any Foreign Lender for U.S. federal income tax purposes to the extent that such Lender has not provided to the Borrower and the Administrative Agent U.S. IRS Forms that establish a complete exemption from such deduction or withholding and (y) the Borrower shall not be obligated pursuant to Section 4.04(a) to gross-up payments to be made to a Lender in respect of income or similar taxes imposed by the United States if (I) such Lender has not provided to the Borrower and the Administrative Agent the IRS Forms and other documentation required to be provided to the Borrower and the Administrative Agent pursuant to this Section 2.8(b4.04(b) unless that establish a complete exemption from such deduction or withholding or (iII) such Forms are required by law as in the case of a condition topayment, or evidence of entitlement toother than interest, relief or exemption to a Lender described in whole or in part from any Taxes, clause (ii) above, to the extent that such Lender forms and other documentation do not establish a complete exemption from withholding of such taxes. Notwithstanding anything to the contrary contained in the preceding sentence or the Administrative Agent is legally entitled to completeelsewhere in this Section 4.04 and except as set forth in Section 12.04(b), execute and deliver such Forms and (iii) the Borrower shall have timely provided agrees to pay any additional amounts and to indemnify each Lender in the manner set forth in Section 4.04(a) (without regard to the identity of the jurisdiction requiring the deduction or withholding) in respect of any amounts deducted or withheld by it as described in the immediately preceding sentence as a result of any changes that are effective after the Effective Date in any applicable law, treaty, governmental rule, regulation, guideline or order, or in the interpretation thereof, relating to the deducting or withholding of such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if anyTaxes.
(c) If the Borrower pays any additional amount under this Section 2.8 a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender 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 Lender determines has complied with such Lender’s obligations under FATCA or 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.
(d) Each Lender that is a United States person as such term is defined in Section 7701(a)(30) of the Code) (a “U.S. Lender”) for U.S. federal income tax purposes agrees to deliver to the Borrower and the Administrative Agent on or prior to the Effective Date or, in the case of a U.S. Lender that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 12.04(b) (unless the respective U.S. Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such U.S. Lender, as applicable, two original accurate and duly completed United States IRS Forms W-9 certifying as to such U.S. Lender’s entitlement to full exemption from United States backup withholding tax, or any successor forms.
(e) If the Administrative Agent or a Lender determines, in its sole discretion discretion, that it has actually received or realized in connection therewith a refund of any refund or any reduction of, or credit against, its Tax liabilities in Taxes as to which it has been indemnified by the Borrower or with respect to the taxable year in which the Borrower has paid additional amount is paid (a “Tax Benefit”)amounts pursuant to this Section 4.04, such Lender it shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to such refund (but only to the net benefitextent of indemnity payments made, after taxor additional amounts paid, which was obtained by the Lender in Borrower under this Section 4.04 with respect to the Taxes giving rise to such year refund), net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender, as a consequence of the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such Tax Benefitrefund); provided, howeverthat the Borrower, that (i) any Lender may determine, in its sole discretion consistent with upon the policies request of the Administrative Agent or such Lender, whether agrees to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information repay the amount paid over to the Borrower (includingplus any penalties, without limitationinterest 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 paragraph (e), its tax returns); and (iii) in no event will the Administrative Agent or a Lender shall be required to pay any amounts amount pursuant to this paragraph (e) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender 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 2.8(c4.04 shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes which it deems confidential) at to the Borrower or any time when a Default or Event of Default existsother Person.
Appears in 1 contract
Sources: Credit Agreement (Radio One, Inc.)
Net Payments. (aa.) All payments made by the Borrower any Obligor hereunder or under any other Financing Document Note or any Guarantee will be made without setoff, counterclaim or other similar defense. All Except as provided in Section 5.06(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature Taxes now or hereafter imposed by any jurisdiction Governmental Authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingexcluding any Excluded Tax) and all interest, in penalties or similar liabilities with respect thereto (all such Taxes (other than Excluded Taxes) being referred to collectively as "Covered Taxes"). If any Covered Taxes are so levied or imposed, each Obligor agrees on a joint and several basis to pay the case full amount of such Covered Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement, the Guarantees or under any Note, after withholding or deduction for or on account of any Covered Taxes, will not be less than the amount provided for herein or in such Note. If any amounts are payable in respect of Covered Taxes pursuant to the preceding sentence, each Obligor agrees, notwithstanding the definition of Excluded Taxes, to reimburse on a joint and several basis each Lender, any tax upon the written request of such Lender, (i) for Taxes imposed on or measured by the net income, revenue, income or gross receipts net profits of such Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or under the laws of any political subdivision thereof or thereintaxing authority of any such jurisdiction by reason of the making of payments in respect of Covered Taxes pursuant to this Section (including pursuant to this sentence) and all interest(ii) for any withholding of Taxes as such Lender shall determine are payable by, penalties or similar liabilities with withheld from, such Lender in respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred of amounts paid in respect of Covered Taxes to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account behalf of such Lender pursuant to the preceding sentence and in respect of any Taxes, will not be less than the amount provided for herein amounts paid to or in on behalf of such Financing Document as if the corresponding deduction or withholding had not been madeLender pursuant to this sentence. The Borrower Each Obligor will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence certified copies of such payment in form and substance tax receipts or other documentation reasonably satisfactory to the Administrative Agentsuch Lender evidencing such payment by such Obligor. The Borrower agrees Obligors agree to jointly and severally indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Covered Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree any liability (including penalties, additions to complete in good faith tax, interest and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(bexpenses) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in arising therefrom or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default existsthereto.
Appears in 1 contract
Sources: Credit Agreement (Centennial Communications Corp /De)
Net Payments. (a) All payments made by the Borrower any Obligor hereunder or under any other Financing Document Note or any Guarantee will be made without setoff, counterclaim or other similar defense. All Except as provided in Section 5.06(b), all such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature Taxes now or hereafter imposed by any jurisdiction Governmental Authority or by any political subdivision or taxing authority thereof or therein with respect to such payments (but excludingexcluding any Excluded Tax) and all interest, in penalties or similar liabilities with respect thereto (all such Taxes (other than Excluded Taxes) being referred to collectively as "Covered Taxes"). If any Covered Taxes are so levied or imposed, each Obligor agrees on a joint and several basis to pay the case full amount of such Covered Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement, the Guarantees or under any Note, after withholding or deduction for or on account of any Covered Taxes, will not be less than the amount provided for herein or in such Note. If any amounts are payable in respect of Covered Taxes pursuant to the preceding sentence, each Obligor agrees, notwithstanding the definition of Excluded Taxes, to reimburse on a joint and several basis each Lender, any tax upon the written request of such Lender, (i) for Taxes imposed on or measured by the net income, revenue, income or gross receipts net profits of such Lender pursuant to the laws of the jurisdiction in which it such Lender is organized or the jurisdiction in which the principal office or Applicable Lending Office of such Lender is located or under the laws of any political subdivision thereof or thereintaxing authority of any such jurisdiction by reason of the making of payments in respect of Covered Taxes pursuant to this Section (including pursuant to this sentence) and all interest(ii) for any withholding of Taxes as such Lender shall determine are payable by, penalties or similar liabilities with withheld from, such Lender in respect thereto (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges being referred of amounts paid in respect of Covered Taxes to collectively as “Taxes”). If any Taxes are so levied or imposed, the Borrower agrees to pay such additional amounts as may be necessary so that the net amount received by the relevant Financing Party hereunder or under any other Financing Document, after withholding or deduction for or on account behalf of such Lender pursuant to the preceding sentence and in respect of any Taxes, will not be less than the amount provided for herein amounts paid to or in on behalf of such Financing Document as if the corresponding deduction or withholding had not been madeLender pursuant to this sentence. The Borrower Each Obligor will furnish to the Administrative Agent within thirty (30) 45 days after the date of the payment of any Covered Taxes is due pursuant to applicable law evidence certified copies of such payment in form and substance tax receipts or other documentation reasonably satisfactory to the Administrative Agentsuch Lender evidencing such payment by such Obligor. The Borrower agrees Obligors agree to jointly and severally indemnify and hold harmless each Lender, and reimburse such Lender upon its written request, for the amount of any Covered Taxes so levied or imposed and paid by such Lender.
(b) Each Lender and the Administrative Agent agree any liability (including penalties, additions to complete in good faith tax, interest and execute and deliver to the Borrower, in a timely manner, such form, certificates, information or documentation relating to such Lender or Administrative Agent to establish the extent to which any payments to such Lender or Administrative Agent are exempt from, or are entitled to a reduction of withholding or deduction of any Taxes (collectively, the “Forms”). Notwithstanding anything to the contrary herein, neither any Lender nor the Administrative Agent shall be required to provide any Forms pursuant to this Section 2.8(bexpenses) unless (i) such Forms are required by law as a condition to, or evidence of entitlement to, relief or exemption in whole or in part from any Taxes, (ii) such Lender or the Administrative Agent is legally entitled to complete, execute and deliver such Forms and (iii) the Borrower shall have timely provided to such Lender or the Administrative Agent a written notice requesting that such Lender or the Administrative Agent execute and deliver such Forms together with the Forms and the official instructions thereto, if any.
(c) If the Borrower pays any additional amount under this Section 2.8 to a Lender and such Lender determines in its sole discretion that it has actually received or realized in connection therewith any refund or any reduction of, or credit against, its Tax liabilities in arising therefrom or with respect to the taxable year in which the additional amount is paid (a “Tax Benefit”), such Lender shall pay to the Borrower an amount that the Lender shall, in good faith, determine is equal to the net benefit, after tax, which was obtained by the Lender in such year as a consequence of such Tax Benefit; provided, however, that (i) any Lender may determine, in its sole discretion consistent with the policies of such Lender, whether to seek a Tax Benefit; (ii) nothing in this Section 2.8(c) shall require any Lender to disclose any confidential information to the Borrower (including, without limitation, its tax returns); and (iii) no Lender shall be required to pay any amounts pursuant to this Section 2.8(c) at any time when a Default or Event of Default existsthereto.
Appears in 1 contract
Sources: Reaffirmation Agreement (Centennial Communications Corp /De)