Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of: (i) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for; (ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge; (iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax; (iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note; (v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent; (vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge; (vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code; (viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or (ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 8 contracts
Sources: Note (Wal Mart Stores Inc), Note (Wal Mart Stores Inc), Global Security Note (Wal Mart Stores Inc)
Payment of Additional Amounts. The All payments in respect of the Notes shall be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature, imposed or levied by the United States or any taxing authority thereof or therein (collectively, “Taxes”) unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company shall pay to the Holder (including, for purposes of this Section 4, the each beneficial owner) of this Note owner who is not a Non-U.S. United States Person (as defined below) such additional amounts (“Additional Amounts”) on such Notes as may be are necessary so in order that every the net payment by the Company or the Paying Agent or a withholding agent of the principal of of, and premium, if any, and interest on this Note to on, such HolderNotes, after such withholding or deduction (including any withholding or withholding for or deduction on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or thereinAdditional Amounts), will not be less than the amount provided in this Note such Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment or other governmental charge Taxes that would not have been imposed but for (A) the existence of any present or former connection between such Holderbeneficial owner, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the beneficial owner if such Holder the beneficial owner is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(i) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of such Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargeStates;
(iii) any taxbeing or having been a personal holding company, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates foreign personal holding company that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment having been a “10-percent shareholder’’ of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of Section 871(h)(3) of the Code, or any successor provision; or;
(viiiv) any withholding or deduction that is imposed being a bank receiving payments on a payment to an individual and is required to be extension of credit made pursuant to that European Union Directive relating to a loan agreement entered into in the taxation ordinary course of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, its trade or any law implementing or complying with, or introduced in order to conform to, such Directive; orbusiness;
(ixb) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of such Notes, or a portion of such Notes, or that is a fiduciary fiduciary, partnership or partnership limited liability company, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or the fiduciary, a beneficial owner thereof, or member of the partnership or limited liability company would not have been entitled to the payment of such any Additional Amounts had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(c) to any Taxes that would not have been imposed but for the failure of the Holder or beneficial owner to comply with any applicable certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such Taxes;
(d) to any Tax that is imposed otherwise than by withholding by the Company or the Paying Agent from the payment;
(e) to any Tax required to be withheld by any Paying Agent from any payment of principal of or interest on the Notes, if such payment can be made without such withholding by at least one other Paying Agent in a Member State of the European Union;
(f) to any Taxes that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the Holderpayment becomes due or is duly provided for, whichever occurs later;
(g) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar Taxes;
(h) to any Taxes that would not have been imposed but for the presentation by the Holder or beneficial owner of such Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(i) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code and related Treasury regulations and pronouncements or any successor provisions thereto (that are substantially comparable and not materially more onerous to comply with) and any regulations or official law, agreement or interpretations thereof implementing an intergovernmental approach thereto; or
(j) in the case of any combination of items (a) through (i) above. The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to such Notes. Except as specifically provided in this Section 2.17, the Company shall not be required to make any payment for any taxes, duties, assessments or governmental charges of whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts. The Company shall give prompt notice to the Trustee upon becoming aware of its requirement to pay any Additional Amount.
Appears in 8 contracts
Sources: Supplemental Indenture (Fidelity National Information Services, Inc.), Supplemental Indenture (Fidelity National Information Services, Inc.), Supplemental Indenture (Fidelity National Information Services, Inc.)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial ownera) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holderin respect of the Securities will be made free and clear of, after and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other governmental charges of whatsoever nature required to be deducted or withheld by the United States or any political subdivision or taxing authority of or in the United States, unless such withholding or deduction is required by law or the official interpretation or administration thereof.
(b) In the event any withholding or deduction on payments in respect of the Securities for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder is required to be deducted or withheld by the United States of America or any political subdivision or taxing authority thereof or therein, the Company will pay such additional amounts on the Securities as will result in receipt by each Holder of a Security that is not a U.S. Person (as defined below) of such amounts (after all such withholding or deduction, including on any additional amounts) as would have been received by such Holder had no such withholding or deduction been required. The Company will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); providedrequired, however, that the Company shall not be required to make any payment of Additional Amounts additional amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been imposed but for (A1) the existence of any present or former connection (other than a connection arising solely from the ownership of those Securities or the receipt of payments in respect of those Securities) between a Holder of a Security (or the beneficial owner for whose benefit such HolderHolder holds such Security), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, that Holder or beneficial owner (if such that Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United States includingStates, without limitation, such Holderincluding that Holder or beneficial owner, or such that fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof of the United States or being or having been engaged in a trade or business or present in the United States of America, or having had a permanent establishment in the United States or (B2) the presentation of this Note a Security for payment on a date more than 30 days after the later of (x) the date on which such that payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, capital gains, excise, personal property property, wealth or similar tax, assessment or other governmental charge;
(iii) any tax, assessment assessment, or other governmental charge imposed by reason of such ▇▇▇▇▇▇the Holder’s or beneficial owner’s past or present status as a passive foreign investment company, a controlled foreign corporation corporation, a foreign tax exempt organization or a personal holding company with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States U.S. federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding or deducting from payment of principal of or premium, if any, or interest on this Notesuch Securities;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of and premium, if any, or interest on this Note any Security if such that payment can be made without withholding by any at least one other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure of a beneficial owner or any Holder of Securities to comply with a request to satisfy certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America the beneficial owner or any Holder of the Securities (including, but not limited to, the requirement to provide Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, or any subsequent versions thereof or successor thereto, and including, without limitation, any documentation requirement under an applicable income tax treaty), provided such beneficial owner or Holder of this Note, if such is legally able to so comply and compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by or on behalf of (A1) a 10% -percent shareholder (as defined in Section 871(h)(3)(B) of the United States U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or Company, (B2) a controlled foreign corporation with respect that is related to the Company within the meaning of Section 864(d)(4) of the Code, or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s or beneficial owner’s status as described in clauses (1) through (3) of this paragraph (vii);
(viii) any withholding tax, assessment or deduction that is imposed on a payment to an individual and is other governmental charge required to be made pursuant to withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor version of such Sections that European Union Directive relating to the taxation of savings adopted on June 3is substantively comparable) (“FATCA”), 2003 by the European Union’s Economic and Financial Affairs Councilany regulations or other guidance thereunder, or any law agreement (including any intergovernmental agreement) entered into in connection therewith; or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or complying with, or introduced an intergovernmental agreement in order to conform to, such Directiverespect of FATCA; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and through (viii) in of this Section 4(a2.14(b); nor shall will the Company pay any Additional Amounts be paid to additional amounts any Holder who that is not the sole beneficial owner of such Securities, or a portion of such Securities, or that is a fiduciary or partnership or a limited liability company, to the extent that a beneficiary or settlor with respect to such that fiduciary or a member of such that partnership or limited liability company or a beneficial owner thereof, thereof would not have been entitled to the payment of such Additional Amounts those additional amounts had such that beneficiary, settlor, member or beneficial owner been the HolderHolder of those Securities.
(c) The Securities are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Securities. Except as specifically provided under this Section 2.14, the Company will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(d) As used under this Section 2.14 and under Section 3.04, the term “United States” means the United States of America, the states of the United States, and the District of Columbia, and the term “U.S. Person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person under any applicable U.S. Treasury regulations), or any estate or trust the income of which is subject to United States federal income taxation regardless of its source.
Appears in 7 contracts
Sources: Supplemental Indenture (American Tower Corp /Ma/), Supplemental Indenture (American Tower Corp /Ma/), Supplemental Indenture (American Tower Corp /Ma/)
Payment of Additional Amounts. (a) All payments of principal, interest, and premium, if any, in respect of the Notes will be made free and clear of, and without withholding or deduction for, any present or future taxes, assessments, duties or governmental charges of whatever nature imposed, levied or collected by the United States (or any political subdivision or taxing authority thereof or therein having power to tax), unless such withholding or deduction is required by law or the official interpretation or administration thereof.
(b) The Company shall pay will, subject to the exceptions and limitations set forth below, pay as additional interest in respect of the Notes such additional amounts as are necessary in order that the net payment by the Company of the principal of, premium, if any, and interest in respect of the Notes to a Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is not a Non-U.S. Person United States person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder), after withholding or deduction or withholding for or on account of any present or future tax, assessment assessment, duties or other governmental charge imposed upon such Holder by the United States of America (or any political subdivision or taxing authority thereof or thereintherein having power to tax), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to the extent any tax, assessment or other governmental charge that would not have been imposed but for the Holder (A) or the existence of any present or former connection between beneficial owner for whose benefit such HolderHolder holds such note), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(1) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(2) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment in respect of the Notes or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(3) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for U.S. federal income tax purposes, a foreign tax-exempt organization, or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States U.S. federal income tax;
(iv4) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Company as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) or any successor provision; or
(5) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, and the regulations that may be promulgated thereunderas described in section 881(c)(3)(A) of the Company Code or any successor provision;
(Bii) to any Holder that is not the sole beneficial owner of the Notes, or a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficial owner with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3Holder, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofor member of the partnership, limited liability company or other fiscally transparent entity would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to the extent any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or the Paying Agent from the payment;
(v) to any tax, assessment or other governmental charge required to be withheld by the Paying Agent from any payment of principal of or interest on any Notes, if such payment can be made without such withholding by any other paying agent;
(vi) to any estate, inheritance, gift, sales, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge, or excise tax imposed on the transfer of Notes;
(vii) to the extent any tax, assessment or other governmental charge would not have been imposed but for the Holderpresentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later except to the extent that the beneficiary or Holder thereof would have been entitled to the payment of additional amounts had such Note been presented for payment on any day during such 30-day period;
(viii) to any tax, assessment or other governmental charge imposed under sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code, whether currently in effect or as published and amended from time to time;
(ix) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later; or
(x) in the case of any combination of the above Sections 3.03(b)(i) – 3.03(b)(xi).
(c) As used in Section 3.02, and this Section 3.03, the term “United States” means the United States of America, its territories and possessions, the states of the United States and the District of Columbia, and the term “United States person” means (i) any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person for United States federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a United States court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
Appears in 5 contracts
Sources: Twentieth Supplemental Indenture (Stryker Corp), Eighteenth Supplemental Indenture (Stryker Corp), Sixteenth Supplemental Indenture (Stryker Corp)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after the Notes will be made free and clear of and without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed upon by any Relevant Taxing Jurisdiction, unless the withholding of such Taxes is required by law or the official interpretation or administration thereof. The Issuer will, subject to the exceptions and limitations set forth below, pay such additional amounts as are necessary in order that the net payment of the principal of and interest on the Notes to a Holder by the who is not a United States person for United States federal income tax purposes, after deduction for any present or future Taxes of America or any taxing authority thereof or thereinRelevant Taxing Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment Taxes that are imposed or other governmental charge that would not have been imposed but for withheld solely by reason of the Holder or beneficial owner of the Notes (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder) being considered as:
(i) being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
(iii) being or having been a citizen foreign or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americadomestic personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder Issuer or the Company under the Notes within the meaning of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directivesuccessor provisions; or
(ixv) being or having been a bank receiving interest described in section 881(c)(3)(A) of the Code or any combination of items successor provisions;
(i), (ii), (iii), (iv), (v), (vi), (viib) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of the Note, or a portion thereof, or that is a fiduciary or partnership partnership, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or the fiduciary, a beneficial owner thereof, or member of the partnership would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(c) to any Taxes that are imposed or withheld solely by reason of the failure to (i) comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction of the Holder or beneficial owner been of such Note, if compliance is required by statute or by regulation of the Relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service (“IRS”) Form W-8 (with any required attachments)) or (ii) comply with any information gathering and reporting requirements or to take any similar action (including entering into any agreement with the IRS), in each case, that are required to obtain the maximum available exemption from withholding by a Relevant Taxing Jurisdiction that is available to payments received by or on behalf of the Holder;
(d) to any Taxes that are imposed otherwise than by withholding from the payment;
(e) to any Taxes that are imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than fifteen (15) days after the payment becomes due or is duly provided for, whichever occurs later;
(f) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(g) to any Taxes required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other Paying Agent;
(h) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or beneficial owner thereof would have been entitled to additional amounts had the Notes been presented for payment on any date during such thirty (30) day period;
(i) to any backup withholding or any Taxes imposed under Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(j) in the case of any combination of any items (a) through (i). The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided by this Section 4.14, the Issuer and the Guarantors shall not be required to make any payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
Appears in 5 contracts
Sources: Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.)
Payment of Additional Amounts. The Subject to the exemptions and limitations set forth below, the Company shall pay additional amounts to the Holder (including, for purposes of this Section 4, the beneficial owner) owner of this Note who that is a “Non-U.S. Person (United States person,” as defined below) such additional amounts as may be necessary so , in order to ensure that every net payment on such Note shall not be less, due to payment of principal of United States withholding tax, than the amount then otherwise due and interest payable. For this purpose, a “net payment” on this Note to such Holdermeans a payment by the Company or any paying agent, including payment of principal and interest, after deduction or withholding for or on account of any present or future tax, assessment, or other governmental charge of the United States (other than a territory or possession). These additional amounts shall constitute additional interest on this Note. The Company shall not be required to pay additional amounts, however, in any of the circumstances described in items (1) through (13) below.
(1) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) having a relationship with the United States as a citizen, resident, or otherwise;
(b) having had such a relationship in the past; or
(c) being considered as having had such a relationship.
(2) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) being treated as present in or engaged in a trade or business in the United States;
(b) being treated as having been present in or engaged in a trade or business in the United States in the past;
(c) having or having had a permanent establishment in the United States; or
(d) having or having had a qualified business unit which has the U.S. dollar as its functional currency.
(3) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) private foundation or other tax-exempt organization;
(d) passive foreign investment company;
(e) controlled foreign corporation; or
(f) corporation which has accumulated earnings to avoid United States federal income tax.
(4) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Company’s stock entitled to vote;
(5) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business. For purposes of items (1) through (5) above, “beneficial owner” includes, without limitation, the holder, and a fiduciary, settlor, partner, member, shareholder, or beneficiary of the holder if the holder is an estate, trust, partnership, limited liability company, corporation, or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder.
(6) Additional amounts shall not be payable to any beneficial owner of this Note that is:
(a) a fiduciary;
(b) a partnership;
(c) a limited liability company;
(d) another fiscally transparent entity; or
(e) not the sole beneficial owner of this Note, or any portion of this Note. However, this exception to the obligation to pay additional amounts shall only apply to the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner, partner or member of the partnership, limited liability company, or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, partner, beneficial owner, or member received directly its beneficial or distributive share of the payment.
(7) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the failure of the beneficial owner of this Note or any other person to comply with applicable certification, identification, documentation or other information reporting requirements. This exception to the obligation to pay additional amounts shall apply only if compliance with such reporting requirements is required as a precondition to exemption from such tax, assessment or other governmental charge imposed upon such Holder by statute or regulation of the United States of America or any taxing authority thereof or therein, will not be less than by an applicable income tax treaty to which the amount provided in this Note to be then due and payable United States is a party.
(such amounts, the “8) Additional Amounts”); provided, however, that the Company amounts shall not be required to make any payable if a payment on this Note is reduced as a result of Additional Amounts for or on account of:
(i) any tax, assessment assessment, or other governmental charge that would is collected or imposed by any method other than by withholding from a payment on this Note by the Company or any paying agent.
(9) Additional amounts shall not have been imposed but for (A) the existence be payable if a payment on this Note is reduced as a result of any present or former connection between such Holdertax, assessment, or between other governmental charge that is imposed or withheld by reason of a fiduciarychange in law, settlor, beneficiary of, member or shareholder ofregulation, or possessor administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional amounts shall not be payable if a payment on this Note is reduced as a result of a power overany tax, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holderassessment, or such fiduciary, settlor, beneficiary, member, shareholder other governmental charge that is imposed or possessor, being or having been a citizen or resident withheld by reason of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in presentation by the United States of America, or (B) the presentation beneficial owner of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later.
(11) Additional amounts shall not be payable if a payment on this Note is reduced as result of any:
(a) estate tax;
(iib) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax; or
(i) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment assessment, or other governmental charge;.
(iii12) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment companyassessment, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any a payment of principal of or interest on this Note if such payment can be made without such withholding by any other paying agent;.
(vi13) any tax, assessment or other governmental charge which would Additional amounts shall not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of be payable if a payment on this Note, if such compliance Note is required by statute or by regulation of the United States Treasury Department reduced as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) result of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), 1) through (ii), (iii), (iv), (v), (vi), (vii12) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 4 contracts
Sources: Supplemental Indenture (Raymond James Financial Inc), Registered Senior Note (Raymond James Financial Inc), Supplemental Indenture (Raymond James Financial Inc)
Payment of Additional Amounts. The All payments in respect of the Notes shall be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature, imposed or levied by the United States or any taxing authority thereof or therein (collectively, “Taxes”) unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company shall pay to the Holder (including, for purposes of this Section 4, the each holder or beneficial owner) of this Note owner who is not a Non-U.S. United States Person (as defined below) such additional amounts (“Additional Amounts”) on such Notes as may be are necessary so in order that every the net payment by the Company or the Paying Agent or a withholding agent of the principal of of, and premium, if any, and interest on this Note to on, such HolderNotes, after such withholding or deduction (including any withholding or withholding for or deduction on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or thereinAdditional Amounts), will not be less than the amount provided in this Note such Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment or other governmental charge Taxes that would not have been imposed but for (A) the existence of any present holder or former connection between such Holderthe beneficial owner, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, of the holder or possessor of a power over, such Holder, the beneficial owner if such Holder the holder or the beneficial owner is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(i) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of such Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargeStates;
(iii) any taxbeing or having been a personal holding company, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates foreign tax exempt organization or a foreign personal holding company that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment having been a “10-percent shareholder’’ of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of Section 871(h)(3) of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directivesuccessor provision; or
(ixv) any combination being a bank receiving payments on an extension of items credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(i), (ii), (iii), (iv), (v), (vi), (viib) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of such Notes, or a portion of such Notes, or that is a fiduciary fiduciary, partnership or partnership limited liability company, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or the fiduciary, a beneficial owner thereof, or member of the partnership or limited liability company would not have been entitled to the payment of such any Additional Amounts had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(c) to any Taxes that would not have been imposed but for the failure of the Holder or beneficial owner to comply with any applicable certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such Taxes;
(d) to any Tax that is imposed otherwise than by withholding by the Company or the Paying Agent from the payment;
(e) to any Taxes that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the Holderpayment becomes due or is duly provided for, whichever occurs later;
(f) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar Taxes;
(g) to any Taxes that would not have been imposed but for the presentation by the Holder or beneficial owner of such Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(h) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code and related Treasury regulations and pronouncements or any successor provisions thereto (that are substantially comparable and not materially more onerous to comply with) and any regulations or official law, agreement or interpretations thereof implementing an intergovernmental approach thereto; or
(i) in the case of any combination of items (a) through (h) above. The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to such Notes. Except as specifically provided in this Section 2.16, the Company shall not be required to make any payment for any taxes, duties, assessments or governmental charges of whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision. Neither the Trustee nor the Paying Agent shall have any responsibility or liability for the determination, verification or calculation of any Additional Amounts. The Company shall give prompt notice to the Trustee upon becoming aware of its requirement to pay any Additional Amount.
Appears in 4 contracts
Sources: Supplemental Indenture (Fidelity National Information Services, Inc.), Supplemental Indenture (Fidelity National Information Services, Inc.), Supplemental Indenture (Fidelity National Information Services, Inc.)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) holder of this Note who is a Non-U.S. Person United States Alien (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderholder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “"Additional Amounts”"); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holderholder, if such Holder holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holderholder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s holder's past or present status as a passive foreign investment company, a controlled foreign corporation corporation, a personal holding company or a foreign personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder holder or beneficial owner of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “"Code”"), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viiivii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder holder who is a fiduciary or partnership or other than the sole beneficial owner of this Note to the extent that a beneficiary or settlor with respect to such fiduciary fiduciary, or a member of such partnership or a beneficial owner thereof, thereof would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderholder.
Appears in 4 contracts
Sources: Note Agreement (Wal Mart Stores Inc), Note Agreement (Wal Mart Stores Inc), Note Agreement (Wal Mart Stores Inc)
Payment of Additional Amounts. The Company All payments of Principal and interest in respect of the Securities shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal free and clear of and interest on this Note to such Holder, after without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed upon such Holder or levied by or on behalf of (i) the government of the United Kingdom or of any territory of the United Kingdom or by any authority or agency therein or thereof having the power to tax or (ii) the government of the United States or of America any state or territory of the United States or by any taxing authority or agency therein or thereof having the power to tax (collectively, "Taxes"), except to the extent such Taxes are required to be withheld or thereindeducted by law or by the interpretation or administration thereof. If either the Company or the Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities, will the Company or the Guarantor, as the case may be, shall pay such additional amounts ("Additional Amounts") as may be necessary such that the net amount received by each Holder (including such Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to Taxes:
(ia) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, Holder or beneficial owner of the Securities (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderHolder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United Kingdom or the United States or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or present in having or having had a permanent establishment therein;
(b) that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;
(c) that are payable other than by withholding from payments of Principal of or interest on the United States Securities;
(d) that would not have been imposed but for the failure of Americathe applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent (x) such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes, and (By) at least 30 days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or the Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(e) that would not have been imposed but for the presentation of this Note a Security (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is was duly provided for, whichever occurred later;
(iif) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is are imposed on a payment to an individual and is are required to be made pursuant to that any European Union Directive relating to on the taxation of savings adopted income relating to the proposal for a directive on June 3, 2003 the taxation of savings income published by the European Union’s Economic and Financial Affairs CouncilECOFIN Council on December 13, 2001 or otherwise implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directivea directive;
(g) that would not have been imposed if presentation for payment of the relevant Securities had been made to a Paying Agent other than the Paying Agent to which the presentation was made; or
(ixh) any combination of items the foregoing clauses (i), a) through (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(ag); nor shall any Additional Amounts be paid with respect to any payment of the Principal of or interest on any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of the Security. The Company shall maintain, in respect of Securities of each series outstanding, at least one Paying Agent located outside the United Kingdom. In the event that the conclusions of the ECOFIN Council meeting of November 26-27, 2000 are implemented, and a Paying Agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a Paying Agent in at least one member state (other than the United Kingdom) that will not be obliged to withhold or deduct taxes pursuant to the European Union Directive on the taxation of savings proposed at the ECOFIN Council meeting of November 26-27, 2000, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such Directive. The obligation of the Company or the Guarantor, as the case may be, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all amounts in respect of the Securities.
Appears in 4 contracts
Sources: Indenture (Glaxosmithkline PLC), Indenture (Glaxosmithkline PLC), Indenture (Glaxosmithkline Capital Inc)
Payment of Additional Amounts. The Company shall pay to the any Holder (includingwhich term, for purposes of this Section 4, the includes each beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any political subdivision or taxing authority thereof or thereintherein (including any tax, assessment or other governmental charge imposed on the additional amounts so paid as provided for in this Section 4(a)), will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been is imposed but for or withheld solely by reason of (A) the existence of any present or former connection (other than a connection arising solely from the ownership of the Notes or the receipt of payments or enforcement of rights in respect of the Notes) between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States includingStates, without limitation, including such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, (1) being or having been a citizen or resident of the United States of America or treated as a resident thereof or of the United States, (2) being or having been present in, or engaged in a trade or business in, the United States, (3) being treated as having been present in, or present engaged in a trade or business in, the United States, or (4) having or having had a permanent establishment in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forStates;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇Holder’s past or present status as a passive foreign investment personal holding company, a controlled foreign corporation corporation, a passive foreign investment company or a personal holding company foreign private foundation or other foreign tax-exempt organization with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or premium, if any, or interest on this Notesuch Holder’s Notes;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of and premium, if any, or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure of the Holder to comply (to the extent that it is legally able to do so) with a request to satisfy any applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this NoteHolder, if such compliance is required by statute or by regulation of the United States U.S. Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any withholding required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any agreement (including any intergovernmental agreement) entered into in connection therewith;
(viii) any tax, assessment or other governmental charge that is imposed or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(ix) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect that is related to the Company within the meaning of Section 864(d)(4) of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixx) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (viiiix) in this Section 4(a); nor . In addition, to the extent described below, the Company shall not pay any Additional Amounts be paid to any Holder who that is a fiduciary fiduciary, partnership, limited liability company or partnership other fiscally transparent entity. This exception will apply to a Holder that is a fiduciary, partnership, limited liability company or other fiscally transparent entity only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofor member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of such an Additional Amounts Amount had such the beneficiary, settlor, member or beneficial owner been or member received directly its beneficial or distributive share of the Holderpayment subject to the tax, assessment or other governmental charge as to which withholding or another deduction occurs.
Appears in 3 contracts
Sources: Note Agreement (Wal Mart Stores Inc), Global Security Note (Wal Mart Stores Inc), Note Agreement (Wal Mart Stores Inc)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after the Notes will be made free and clear of and without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed upon by any Relevant Taxing Jurisdiction, unless the withholding of such Holder Taxes is required by law or the United States official interpretation or administration thereof. The Issuer will, subject to the exceptions and limitations set forth below, pay such additional amounts as are necessary in order that the net payment of America the principal of and interest on the Notes to a Holder, after deduction for any present or future Taxes of any taxing authority thereof or thereinRelevant Taxing Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein having power to tax, assessment ) that are imposed or other governmental charge that would not have been imposed but for withheld solely by reason of the Holder or beneficial owner of the Notes (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder) being considered as:
(i) being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
(iii) being or having been a citizen foreign or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americadomestic personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder Issuer or the Company under the Notes within the meaning of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directivesuccessor provisions; or
(ixv) being or having been a bank receiving interest described in section 881(c)(3)(A) of the Code or any combination successor provisions;
(b) to any Taxes that are imposed or withheld by reason of items the existence of any present or former connection between the Holder or beneficial owner of such note (ior a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a Person holding a power over an estate or trust administered by a fiduciary holder) and the Relevant Taxing Jurisdiction (other than merely holding or being a beneficial owner of such note or the receipt or enforcement of payments or deliveries thereunder), including such Holder or beneficial owner being or having been organized or incorporated in, a national, domiciliary or resident, or treated as a resident, of, or being or having been physically present or engaged in a trade or business, or having had a permanent establishment, in, such Relevant Taxing Jurisdiction;
(ii), (iii), (iv), (v), (vi), (viic) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of the Note, or a portion thereof, or that is a fiduciary or partnership partnership, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or the fiduciary, a beneficial owner thereof, or member of the partnership would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(d) to any Taxes that are imposed or withheld solely by reason of the failure to (i) comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction of, or other information relating to, the Holder or beneficial owner been of such Note, if compliance is required by the Relevant Taxing Jurisdiction for not falling under the scope of such Taxes (including for purposes of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021)), or as a precondition to relief or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service (“IRS”) Form W-8 (with any required attachments)) or (ii) comply with any information gathering and reporting requirements or to take any similar action (including entering into any agreement with the IRS), in each case, that are required to obtain the maximum available exemption from withholding by a Relevant Taxing Jurisdiction that is available to payments received by or on behalf of the Holder.;
(e) to any Taxes that are imposed otherwise than by withholding from the payment;
(f) to any Taxes that are imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than fifteen (15) days after the payment becomes due or is duly provided for, whichever occurs later;
(g) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(h) to any Taxes required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other Paying Agent;
(i) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or beneficial owner thereof would have been entitled to additional amounts had the Notes been presented for payment on any date during such thirty (30) day period;
(j) to any backup withholding or any Taxes imposed under Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(k) to any Dutch withholding tax under the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet bronbelasting 2021) imposed on a Holder or, where applicable, a beneficiary (voordeelsgerechtigde) of the Notes for purposes of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet bronbelasting 2021) that is an entity that is related (gelieerd) to the Issuer within the meaning of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021). An entity is considered related to the Issuer if (i) it directly or indirectly holds a Qualifying Interest (as defined below) in the Issuer, (ii) the Issuer directly or indirectly holds a Qualifying Interest in the entity, or (iii) a third party or a collaborating group (samenwerkende groep) directly or indirectly holds a Qualifying Interest in both the Issuer and the entity. The term “Qualifying Interest” means an interest that allows the holder of the interest to individually – or jointly in the case of a collaborating group – exert such a decisive influence on the Issuer’s decisions that such holder or such collaborating group can determine the Issuer’s activities (kwalificerend belang); or
Appears in 3 contracts
Sources: Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.)
Payment of Additional Amounts. The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company or a paying agent of the principal of and interest on this Note the Notes to such a Foreign Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any a political subdivision or taxing authority thereof or therein, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note the Notes to be then due and payable (such amountspayable; PROVIDED, the “Additional Amounts”); provided, howeverHOWEVER, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) any 1. to a tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, considered as:
a. being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
b. having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
c. being or having been a citizen foreign or resident domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States or a corporation that has accumulated earnings to avoid United States federal income tax; or
d. being or having been a "10-percent shareholder" of the Company as defined in section 871(h)(3) of the United States Internal Revenue Code of America 1986, as amended, (the "Code") or treated as any successor provision;
2. to any Holder that is not the sole beneficial owner of the Notes, or a resident thereof portion thereof, or being that is a fiduciary or having partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner or member of the partnership would not have been engaged in trade entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or business member received directly its beneficial or present in distributive share of the payment;
3. to a tax, assessment or governmental charge that is imposed or withheld solely by reason of the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the United States Treasury Department or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which reduction of, such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any 4. to a tax, assessment or other governmental charge that is imposed otherwise than by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation withholding by the Company or a personal holding company with respect to paying agent from the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxpayment;
(iv) any 5. to a tax, assessment or other governmental charge which that is payable otherwise imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than by withholding from 15 days after the payment of principal of becomes due or interest on this Noteis duly provided for, whichever occurs later;
(v) 6. to an estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
7. to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Notes, if such payment can be made without such withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) 8. in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder"1." - "
Appears in 3 contracts
Sources: Fourth Supplemental Indenture (TRW Inc), Second Supplemental Indenture (TRW Inc), Third Supplemental Indenture (TRW Inc)
Payment of Additional Amounts. (a) All payments of principal, interest, and premium, if any, in respect of the Notes will be made free and clear of, and without withholding or deduction for, any present or future taxes, assessments, duties or governmental charges of whatever nature imposed, levied or collected by the United States (or any political subdivision or taxing authority thereof or therein having power to tax), unless such withholding or deduction is required by law or the official interpretation or administration thereof.
(b) The Company shall pay will, subject to the exceptions and limitations set forth below, pay as additional interest in respect of the Notes such additional amounts as are necessary in order that the net payment by the Company of the principal of, premium, if any, and interest in respect of the Notes to a Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is not a Non-U.S. Person United States person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder), after withholding or deduction or withholding for or on account of any present or future tax, assessment assessment, duties or other governmental charge imposed upon such Holder by the United States of America (or any political subdivision or taxing authority thereof or thereintherein having power to tax), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to the extent any tax, assessment or other governmental charge that would not have been imposed but for the Holder (A) or the existence of any present or former connection between beneficial owner for whose benefit such HolderHolder holds such note), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(A) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(B) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment in respect of the Notes or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(C) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for U.S. federal income tax purposes, a foreign tax-exempt organization, or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States U.S. federal income tax;
(ivD) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Company as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) or any successor provision; or
(E) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, and the regulations that may be promulgated thereunderas described in section 881(c)(3)(A) of the Company Code or any successor provision;
(Bii) to any Holder that is not the sole beneficial owner of the Notes, or a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficial owner with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3Holder, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofor member of the partnership, limited liability company or other fiscally transparent entity would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to the extent any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or the Paying Agent from the payment;
(v) to any tax, assessment or other governmental charge required to be withheld by the Paying Agent from any payment of principal of or interest on any Notes, if such payment can be made without such withholding by any other paying agent;
(vi) to any estate, inheritance, gift, sales, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge, or excise tax imposed on the transfer of Notes;
(vii) to the extent any tax, assessment or other governmental charge would not have been imposed but for the Holderpresentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later except to the extent that the beneficiary or Holder thereof would have been entitled to the payment of additional amounts had such Note been presented for payment on any day during such 30-day period;
(viii) to any tax, assessment or other governmental charge imposed under sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code, whether currently in effect or as published and amended from time to time;
(ix) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later; or
(x) in the case of any combination of the above Sections 3.03(b)(i) – 3.03(b)(xi).
(c) As used in Section 3.02, and this Section 3.03, the term “United States” means the United States of America, its territories and possessions, the states of the United States and the District of Columbia, and the term “United States person” means (i) any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person for United States federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a United States court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
Appears in 3 contracts
Sources: Twenty Eighth Supplemental Indenture (Stryker Corp), Twenty Ninth Supplemental Indenture (Stryker Corp), Twenty Seventh Supplemental Indenture (Stryker Corp)
Payment of Additional Amounts. The If any deduction or withholding for any present or future taxes, assessments or other governmental charges of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company or a successor corporation under the Notes, the Company or a successor corporation will pay to the each Holder (includingof Notes as additional interest, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such Holderholder of such Notes who, after deduction or withholding for or on account of with respect to any present or future such tax, assessment or other governmental charge imposed upon charge, is not resident in, or a citizen of, such Holder by the United States of America jurisdiction, after such deduction or any taxing authority thereof or thereinwithholding, will shall be not be less than the amount provided specified in this Note such Notes to be then due and payable (which such amounts, the “Additional Amounts”)Holder is entitled; provided, however, that the Company or a successor corporation shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any Any tax, assessment or other governmental charge that would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bii) the presentation of this a Note (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later, or (iii) the presentation of a Note for payment in Bermuda or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere;
(iib) any Any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiic) any Any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which that is payable otherwise than by withholding from payment of principal of of, premium, if any, or any interest on this Notethe Notes;
(vd) any Any tax, assessment or other governmental charge required to be that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a request of the Company addressed to the Holder (i) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make and deliver any paying agent from any payment declaration or other similar claim (other than a claim for refund of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any a tax, assessment or other governmental charge which would not have been withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed but for the failure to comply with certificationby a statute, informationtreaty, documentation regulation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America administrative practice of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixe) any Any combination of items (ia), (iib), (iii), (iv), (v), (vi), (viic) and (viiid) in this Section 4(a)above; nor shall any Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of (x) Bermuda or any political subdivision or governmental authority thereof or therein having the power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of such Note. The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes, if any, by the Company. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agent, as applicable, upon request therefor. All references in this Indenture to principal of, premium, if any, and interest on the Notes shall include any Additional Amounts payable by the Company in respect of such principal, such premium, if any, and such interest.
Appears in 3 contracts
Sources: Indenture (Global Crossing Holdings LTD), Indenture (Global Crossing LTD), Indenture (Global Crossing LTD LDC)
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been holding of a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Note),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this Note, the Note if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations Issuer has given the Holders at least 30 days’ notice that may Holders shall be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect required to the Company within the meaning of the Code;provide such information and identification,
(viiiiv) any Taxes payable otherwise than by deduction or withholding or deduction that is from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other directive implementing the taxation conclusions of savings adopted on June 3the ECOFIN Council meeting of November 26-27, 2003 by the European Union’s Economic and Financial Affairs Council, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; directives,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid payment on the Note to any a Holder who that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts stated in clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice or (ii) Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such clause is expressly required by the applicable Mexican laws and regulations in order to apply Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on their own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations. In addition, clause (b)(iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 3 contracts
Sources: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note any Securityholder who is a Nonnon-U.S. Person (as defined below) United States person such additional amounts ("Additional Amounts") as may be necessary so in order that every net payment in respect of principal of and interest the principal, premium, if any, or interest, if any, on this Note to such HolderSecurities, after deduction or withholding by the Company or any Paying Agent for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in this Note such Securities to be then due and payable (before any such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts deduction or withholding for or on account ofof any such tax, assessment or governmental charge. The foregoing obligation to pay such Additional Amounts shall not apply to:
(ia) any tax, assessment or other governmental charge that which would not have been so imposed but for for:
(Ai) the existence of any present or former connection between such Holder, Securityholder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor holder of a power over, such HolderSecurityholder, if such Holder Securityholder is an estate, trust, partnership or corporation, ) and the United States States, including, without limitation, such Holder, Securityholder (or such fiduciary, settlor, beneficiary, member, shareholder of, or possessor, holder of a power) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in a trade or business therein or being or having been present in the United States of Americatherein or having or having had a permanent establishment therein, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;or
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property such Securityholder's present or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present former status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the or foreign personal holding company or controlled foreign corporation for United States of America, federal income tax purposes or as a corporation which accumulates earnings to avoid United States federal income tax;
(ivb) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Securityholder for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property or excise tax or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments in respect of principal of or interest interest, if any, on this Noteany of the Securities;
(ve) any tax, assessment or other governmental charge imposed on interest received by a Securityholder or beneficial owner of the Securities who actually or constructively owns 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote within the meaning of Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended;
(f) any tax, assessment or other governmental charge imposed as a result of the failure to comply with:
(i) certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the United States of the Securityholder or beneficial owner of the Securities, if such compliance is required by statute, or by regulation of the United States Treasury Department, as a precondition to relief or exemption from such tax, assessment or other governmental charge (including backup withholding), or
(ii) any other certification, information, documentation, reporting or other similar requirements under United States income tax laws or regulations that would establish entitlement to otherwise applicable relief or exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge required to be withheld by any paying agent Paying Agent from any payment of the principal of or interest interest, if any, on this Note any of the Securities, if such payment can be made without such withholding by any at least one other paying agentPaying Agent;
(vih) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that any European Union Directive relating to directive on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, income or any law implementing or complying with, or introduced in order to conform to, any such Directivedirective; or
(ixi) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (viig) and or (viii) in this Section 4(ah); nor shall any will such Additional Amounts be paid to any Holder Securityholder who is a fiduciary or partnership or other than the sole beneficial owner of the Securities to the extent that a settlor or beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, of the Securities would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderSecurityholder. The Securities are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided under this Section 3, the Company shall not be required to make any payment with respect to any tax, assessment or governmental charge imposed by any government or a political subdivision or taxing authority thereof or therein.
Appears in 3 contracts
Sources: Indenture (Navistar International Corp), Indenture (Navistar International Corp), Indenture (Navistar International Corp)
Payment of Additional Amounts. The (a) Any amounts paid, or caused to be paid, by the Company or any of its successors pursuant to Section 3.01 of the Base Indenture will be paid without deduction or withholding for any and all present and future taxes, levies, imposts or other governmental charges (“Taxes”) whatsoever imposed, assessed, levied or collected by or on behalf of Singapore, including any political subdivision or taxing authority thereof, or the jurisdiction of incorporation or residence of any successor, or any Subsidiary, branch, division or other entity through which the Company may from time to time direct any payments of principal, premium, if any, and interest on the Notes or any political subdivision or taxing authority thereof (an “Other Jurisdiction”). If deduction or withholding of any Taxes shall pay to the Holder (including, for purposes of this Section 4at any time be required by Singapore or any Other Jurisdiction, the Company or any relevant successor will, subject to timely compliance by the Holders or beneficial owner) owners of this Note who is a Non-U.S. Person (as defined below) the relevant Notes with any relevant administrative requirements, notify the Trustee and pay or cause to be paid such additional amounts (“Additional Amounts”) in respect of principal of, premium, if any, or interest, as may be necessary so in order that every the net amounts paid to the Holders of the Notes outstanding on the date of the required payment of principal of and interest on this Note or the Trustee as the case may be, pursuant to such Holderthe Indenture, after the deduction or withholding withholding, shall equal the respective amounts that the Holder would have received if the Taxes had not been withheld or deducted.
(b) Notwithstanding the foregoing, no Additional Amounts shall be paid to any Holder or beneficial owner for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account offollowing:
(i) any tax, assessment present or other governmental charge that future Taxes which would not have been imposed so imposed, assessed, levied or collected but for the fact that the Holder or beneficial owner of the relevant Note has or had some connection with Singapore or any Other Jurisdiction, including that the Holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any Other Jurisdiction, or otherwise has or has had some connection with Singapore or any Other Jurisdiction, other than solely the holding or ownership of a Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, a Note;
(Aii) the existence of any present or former connection between such Holderfuture Taxes which would not have been so imposed, assessed, levied or between a fiduciarycollected but for the fact that, settlorwhere presentation is required, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this relevant Note for payment on a date was presented more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) the date on which payment thereof is duly or was provided for, whichever is later;
(iiiii) any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of the relevant Note;
(iv) any present or future Taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any Other Jurisdiction of the Holder or beneficial owner of the relevant Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the Other Jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;
(v) any present or future Taxes (A) which would not have been so imposed, assessed, levied or collected if the beneficial owner of the relevant Note had been the Holder of such Note, or (B) which, if the beneficial owner of such Note had held the Note as the Holder of such Note, would have been excluded pursuant to any one or combination of clauses (i) through (iv) above;
(vi) any capital gain, estate, inheritance, gift, salessale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;; or
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) combination of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 3 contracts
Sources: Sixth Supplemental Indenture (Flex Ltd.), Fifth Supplemental Indenture (Flex Ltd.), Third Supplemental Indenture (Flex Ltd.)
Payment of Additional Amounts. If specified pursuant to, and subject to, Section 301, the provisions of this Section 1009 (as may be modified pursuant to Section 301) shall be applicable to Securities of any series. The Company shall Issuer or the Guarantors, as the case may be, shall, subject to the exceptions and limitations set forth below, pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note any Security who is a Non-U.S. Person (as defined below) United States Alien such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such HolderSecurity, after deduction or withholding by the Issuer, the Guarantors or any of their Paying Agents for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America (or any political subdivision or taxing authority thereof or therein), will shall not be less than the amount provided in this Note such Security to be then due and payable (such amountspayable. However, neither the “Additional Amounts”); provided, however, that Issuer nor the Company Guarantors shall not be required to make any payment of Additional Amounts additional amounts for or on account of:
(ia) any tax, assessment or other governmental charge that would not have been so imposed but for (Ai) the existence of any present or former connection between such Holder, Holder or the beneficial owner of such Security (or between a fiduciary, settlor, settler or beneficiary of, member or shareholder of, or possessor of a person holding a power over, such HolderHolder or such beneficial owner, if such Holder or such beneficial owner is an estate, estate or trust, or a member or shareholder of such Holder or such beneficial owner, if such Holder or such beneficial owner is a partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder or such beneficial owner (or such fiduciary, settlorsettler, beneficiary, memberperson holding a power, shareholder member or possessor, shareholder) being or having been a citizen or citizen, resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in therein or having or having had a permanent establishment therein, or (ii) such Holder’s or such beneficial owner’s present or former status as a personal holding company, foreign personal holding company, controlled foreign corporation or passive foreign investment company with respect to the United States of Americaor as a corporation that accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or (B) other governmental charge which would not have been so imposed but for the presentation by the Holder of this Note such Security for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iic) any estate, inheritance, gift, sales, transfer, excise, personal property tax or any similar tax, assessment or other governmental charge;
(iiid) any tax, assessment or other governmental charge imposed required to be withheld by reason any Paying Agent from any payment in respect of any Security, if such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxpayment can be made without such withholding by at least one other Paying Agent;
(ive) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments in respect of principal of or interest on this Notesuch Security;
(vf) any tax, assessment or other governmental charge required imposed on a Holder or beneficial owner of a Security or coupon that (i) actually or constructively owns 10 percent or more of the capital or profits interests of the Issuer or that is a controlled foreign corporation related to be withheld by the Issuer through stock ownership or (ii) is a bank described in Section 881(c)(3)(A) of the Code, or of any paying agent from provision of any payment of principal of or interest on this Note if successor revenue law similarly applicable to such payment can be made without withholding by any other paying agentbanks;
(vig) any tax, assessment or other governmental charge which would not have been imposed but for as a result of the failure to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America of the Holder or beneficial owner of this Notea Security or coupon, if such compliance is required by statute or by regulation of the United States Treasury Department States, as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixh) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (vii) and (viii) in this Section 4(ag); nor shall any Additional Amounts additional amounts be paid with respect to any payment on any such Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income for federal income tax purposes of a beneficiary or settlor settler with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts the additional amounts had such beneficiary, settlorsettler, member or beneficial owner been the HolderHolder of such Security.
Appears in 3 contracts
Sources: Indenture (Sovran Acquisition LTD Partnership), Indenture (Sovran Acquisition LTD Partnership), Indenture (CubeSmart, L.P.)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after the Notes will be made free and clear of and without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed upon by any Relevant Taxing Jurisdiction, unless the withholding of such Holder Taxes is required by law or the United States official interpretation or administration thereof. The Issuer will, subject to the exceptions and limitations set forth below, pay such additional amounts as are necessary in order that the net payment of America the principal of and interest on the Notes to a Holder, after deduction for any present or future Taxes of any taxing authority thereof or thereinRelevant Taxing Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein having power to tax, assessment ) that are imposed or other governmental charge that would not have been imposed but for withheld solely by reason of the Holder or beneficial owner of the Notes (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder) being considered as:
(i) being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
(iii) being or having been a citizen foreign or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americadomestic personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder Issuer or the Company under the Notes within the meaning of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directivesuccessor provisions; or
(ixv) being or having been a bank receiving interest described in section 881(c)(3)(A) of the Code or any combination successor provisions;
(b) to any Taxes that are imposed or withheld by reason of items the existence of any present or former connection between the holder or beneficial owner of such note (ior a fiduciary, settlor, beneficiary, member or shareholder of the holder if the holder is an estate, trust, partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder) and the Relevant Taxing Jurisdiction (other than merely holding or being a beneficial owner of such note or the receipt or enforcement of payments or deliveries thereunder), including such holder or beneficial owner being or having been organized or incorporated in, a national, domiciliary or resident, or treated as a resident, of, or being or having been physically present or engaged in a trade or business, or having had a permanent establishment, in, such Relevant Taxing Jurisdiction;
(ii), (iii), (iv), (v), (vi), (viic) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of the Note, or a portion thereof, or that is a fiduciary or partnership partnership, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or the fiduciary, a beneficial owner thereof, or member of the partnership would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(d) to any Taxes that are imposed or withheld solely by reason of the failure to (i) comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction of, or other information relating to, the Holder or beneficial owner been of such Note, if compliance is required by the Relevant Taxing Jurisdiction for not falling under the scope of such Taxes (including for purposes of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021)), or as a precondition to relief or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service (“IRS”) Form W-8 (with any required attachments)) or (ii) comply with any information gathering and reporting requirements or to take any similar action (including entering into any agreement with the IRS), in each case, that are required to obtain the maximum available exemption from withholding by a Relevant Taxing Jurisdiction that is available to payments received by or on behalf of the Holder.;
(e) to any Taxes that are imposed otherwise than by withholding from the payment;
(f) to any Taxes that are imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than fifteen (15) days after the payment becomes due or is duly provided for, whichever occurs later;
(g) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(h) to any Taxes required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other Paying Agent;
(i) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or beneficial owner thereof would have been entitled to additional amounts had the Notes been presented for payment on any date during such thirty (30) day period;
(j) to any backup withholding or any Taxes imposed under Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(k) to any Dutch withholding tax under the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet bronbelasting 2021) imposed on a Holder or, where applicable, a beneficiary (voordeelsgerechtigde) of the Notes for purposes of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet bronbelasting 2021) that is an entity that is related (gelieerd) to the Issuer within the meaning of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021). An entity is considered related to the Issuer if (i) it directly or indirectly holds a Qualifying Interest (as defined below) in the Issuer, (ii) the Issuer directly or indirectly holds a Qualifying Interest in the entity, or (iii) a third party or a collaborating group (samenwerkende groep) directly or indirectly holds a Qualifying Interest in both the Issuer and the entity. The term “Qualifying Interest” means an interest that allows the holder of the interest to individually – or jointly in the case of a collaborating group – exert such a decisive influence on the Issuer’s decisions that such holder or such collaborating group can determine the Issuer’s activities (kwalificerend belang); or
Appears in 3 contracts
Sources: Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.)
Payment of Additional Amounts. (a) The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company of the principal of and interest on this Note the Notes to such Holdera Holder who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof in the United States (including any withholding or thereindeduction with respect to the payment of such additional amounts), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder or beneficial owner if the Holder or beneficial owner is an estate, trust, partnership, corporation or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment thereon or the enforcement of any rights thereunder), including being or having been a citizen or resident of the United States;
(c) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States federal income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of such additional amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or any present other person to comply with any certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof such Holder or other person, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge;
(B4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the presentation of this Note Company or a paying agent from payments on the Notes;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for payment on a date change in law, regulation, or administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(ii6) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii7) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Note, if such payment can be made without such withholding by any presenting such Note (where presentation is required) to at least one other paying agent;
(vi) 8) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this any Note, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition date on which payment thereof is duly provided for, whichever occurs later;
(9) to relief or exemption from such any tax, assessment or other governmental chargecharge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes only;
(vii10) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix11) in the case of any combination of items (i1), (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (8), (9), and (10).
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 3.01, the Company will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Section 3.01 and Section 2.08 hereof, the term “United States” means the United States of America (including the states of the United States and the District of Columbia and any political subdivision thereof) and (viii) in this Section 4(a); nor shall the term “United States person” means any Additional Amounts be paid to any Holder individual who is a fiduciary citizen or partnership to resident of the extent that United States for U.S. federal income tax purposes, a beneficiary or settlor with respect to such fiduciary or a member of such corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a beneficial owner thereofpartnership that is not treated as a United States person under any applicable Treasury regulations), would not have been entitled or any estate or trust the income of which is subject to the payment United States federal income taxation regardless of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderits source.
Appears in 3 contracts
Sources: Supplemental Indenture (Fedex Corp), Supplemental Indenture (Fedex Corp), Supplemental Indenture (Fedex Corp)
Payment of Additional Amounts. The Company shall pay to the a Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person United States Alien (as defined below) such additional amounts (the “Additional Amounts”) as may be necessary so that every net payment of principal of and interest on this Note to such Holderthe Subordinated Notes, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder Holder, or by reason of the making of such payment, by the United States of America or any taxing authority thereof or therein, will shall not be less than the amount provided for in this Note the Subordinated Notes to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the payable. The Company shall not be required required, however, to make any payment of any Additional Amounts for or on account of:
(ia) any tax, assessment or other governmental charge that which would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, holder (or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americatherein, or having or having had a permanent establishment therein, or (Bii) the presentation of this Note the Subordinated Notes appertaining thereto for payment on a date more than 30 10 days after the later of (x) the date on which such payment becomes due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iib) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiic) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation corporation, a personal holding company or a foreign personal holding company with respect to the United States of AmericaStates, or as a corporation which accumulates earnings to avoid United States federal income tax;
(ivd) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of of, or interest on this Noteon, the Subordinated Notes;
(ve) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of of, or interest on this Note on, the Subordinated Notes if such payment can be made without withholding by any other paying agent;
(vif) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America the Holder or beneficial owner of the Holder of this NoteSubordinated Notes, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viig) any tax, assessment or other governmental charge imposed on interest received by (Ai) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or of (Bii) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixh) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vi), (viif) and (viii) in this Section 4(ag); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Subordinated Notes appertaining thereto to the extent that a beneficiary or settlor with respect to such fiduciary fiduciary, or a member of such partnership or a beneficial owner thereof, thereof would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderHolder of the Subordinated Notes appertaining thereto.
Appears in 3 contracts
Sources: Supplemental Indenture (Lehman Brothers Holdings Inc), Supplemental Indenture (Lehman Brothers Holdings Inc), Supplemental Indenture (Lehman Brothers Holdings Inc)
Payment of Additional Amounts. (a) All payments of principal, interest, and premium, if any, in respect of the Notes will be made free and clear of, and without withholding or deduction for, any present or future taxes, assessments, duties or governmental charges of whatever nature imposed, levied or collected by the United States (or any political subdivision or taxing authority thereof or therein having power to tax), unless such withholding or deduction is required by law or the official interpretation or administration thereof.
(b) The Company shall pay will, subject to the exceptions and limitations set forth below, pay as additional interest in respect of the Notes such additional amounts as are necessary in order that the net payment by the Company of the principal of, premium, if any, and interest in respect of the Notes to a Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is not a Non-U.S. Person United States person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder), after withholding or deduction or withholding for or on account of any present or future tax, assessment assessment, duties or other governmental charge imposed upon such Holder by the United States of America (or any political subdivision or taxing authority thereof or thereintherein having power to tax), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to the extent any tax, assessment or other governmental charge that would not have been imposed but for the Holder (A) or the existence of any present or former connection between beneficial owner for whose benefit such HolderHolder holds such note), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(1) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(2) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment in respect of the Notes or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(3) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for U.S. federal income tax purposes, a foreign tax-exempt organization, or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States U.S. federal income tax;
(iv4) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Company as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) or any successor provision; or
(5) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, and the regulations that may be promulgated thereunderas described in section 881(c)(3)(A) of the Company Code or any successor provision;
(Bii) to any Holder that is not the sole beneficial owner of the Notes, or a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficial owner with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3Holder, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofor member of the partnership, limited liability company or other fiscally transparent entity would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to the extent any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or the Paying Agent from the payment;
(v) to any tax, assessment or other governmental charge required to be withheld by the Paying Agent from any payment of principal of or interest on any Notes, if such payment can be made without such withholding by any other paying agent;
(vi) to any estate, inheritance, gift, sales, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge, or excise tax imposed on the transfer of Notes;
(vii) to the extent any tax, assessment or other governmental charge would not have been imposed but for the Holderpresentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later except to the extent that the beneficiary or Holder thereof would have been entitled to the payment of additional amounts had such Note been presented for payment on any day during such 30-day period;
(viii) to any tax, assessment or other governmental charge imposed under sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code, whether currently in effect or as published and amended from time to time;
(ix) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later; or
(x) in the case of any combination of the above Sections 3.04(b)(i) – 3.04(b)(xi).
(c) As used in Section 3.03, and this Section 3.04, the term “United States” means the United States of America, its territories and possessions, the states of the United States and the District of Columbia, and the term “United States person” means (i) any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person for United States federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a United States court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
Appears in 2 contracts
Sources: Twenty First Supplemental Indenture (Stryker Corp), Nineteenth Supplemental Indenture (Stryker Corp)
Payment of Additional Amounts. The Subject to the exemptions and limitations set forth below, the Company shall pay additional amounts to the Holder (including, for purposes of this Section 4, the beneficial owner) owner of this Note who that is a “Non-U.S. Person (United States person,” as defined below) such additional amounts as may be necessary so , in order to ensure that every net payment on such Note shall not be less, due to payment of principal of United States withholding tax, than the amount then otherwise due and interest payable. For this purpose, a “net payment” on this Note to such Holdermeans a payment by the Company or any paying agent, including payment of principal and interest, after deduction or withholding for or on account of any present or future tax, assessment, or other governmental charge of the United States (other than a territory or possession). These additional amounts shall constitute additional interest on this Note. The Company shall not be required to pay additional amounts, however, in any of the circumstances described in items (1) through (14) below.
(1) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) having a relationship with the United States as a citizen, resident, or otherwise;
(b) having had such a relationship in the past; or
(c) being considered as having had such a relationship.
(2) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) being treated as present in or engaged in a trade or business in the United States;
(b) being treated as having been present in or engaged in a trade or business in the United States in the past;
(c) having or having had a permanent establishment in the United States; or
(d) having or having had a qualified business unit which has the U.S. dollar as its functional currency.
(3) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) private foundation or other tax-exempt organization;
(d) passive foreign investment company;
(e) controlled foreign corporation; or
(f) corporation which has accumulated earnings to avoid United States federal income tax.
(4) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Company’s stock entitled to vote.
(5) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business. For purposes of items (1) through (5) above, “beneficial owner” includes, without limitation, the holder, and a fiduciary, settlor, partner, member, shareholder, or beneficiary of the holder if the holder is an estate, trust, partnership, limited liability company, corporation, or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder.
(6) Additional amounts shall not be payable to any beneficial owner of this Note that is:
(a) a fiduciary;
(b) a partnership;
(c) a limited liability company;
(d) another fiscally transparent entity; or
(e) not the sole beneficial owner of this Note, or any portion of this Note. However, this exception to the obligation to pay additional amounts shall only apply to the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner, partner or member of the partnership, limited liability company, or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, partner, beneficial owner, or member received directly its beneficial or distributive share of the payment.
(7) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the failure of the beneficial owner of this Note or any other person to comply with applicable certification, identification, documentation or other information reporting requirements. This exception to the obligation to pay additional amounts shall apply only if compliance with such reporting requirements is required as a precondition to exemption from such tax, assessment or other governmental charge imposed upon such Holder by statute or regulation of the United States of America or any taxing authority thereof or therein, will not be less than by an applicable income tax treaty to which the amount provided in this Note to be then due and payable United States is a party.
(such amounts, the “8) Additional Amounts”); provided, however, that the Company amounts shall not be required to make any payable if a payment on this Note is reduced as a result of Additional Amounts for or on account of:
(i) any tax, assessment assessment, or other governmental charge that would is collected or imposed by any method other than by withholding from a payment on this Note by the Company or any paying agent.
(9) Additional amounts shall not have been imposed but for (A) the existence be payable if a payment on this Note is reduced as a result of any present or former connection between such Holdertax, assessment, or between other governmental charge that is imposed or withheld by reason of a fiduciarychange in law, settlor, beneficiary of, member or shareholder ofregulation, or possessor administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional amounts shall not be payable if a payment on this Note is reduced as a result of a power overany tax, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holderassessment, or such fiduciary, settlor, beneficiary, member, shareholder other governmental charge that is imposed or possessor, being or having been a citizen or resident withheld by reason of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in presentation by the United States of America, or (B) the presentation beneficial owner of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later.
(11) Additional amounts shall not be payable if a payment on this Note is reduced as result of any:
(a) estate tax;
(iib) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax; or
(i) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment assessment, or other governmental charge;.
(iii12) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment companyassessment, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any a payment of principal of or interest on this Note if such payment can be made without such withholding by any other paying agent;.
(vi13) Additional amounts shall not be payable if a payment on this Note is reduced by any tax, assessment assessment, or other governmental charge which would not have been that is imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America withheld by reason of the Holder application of this Note, if such compliance is required by statute section 1471 (or by regulation of the United States Treasury Department as a precondition to relief any successor provision) or exemption from such tax, assessment section 1472 (or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(Bsuccessor provision) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilamended, or any law implementing related administrative regulation or complying with, or introduced in order to conform to, such Directive; orpronouncement.
(ix14) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any combination of items (i), 1) through (ii), (iii), (iv), (v), (vi), (vii13) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 2 contracts
Sources: Registered Senior Note (Raymond James Financial Inc), Supplemental Indenture (Raymond James Financial Inc)
Payment of Additional Amounts. The (a) All payments made by the Company shall pay under or with respect to the Holder Notes will be made free and clear of, and without withholding or deduction for or on account of, any Tax, unless the withholding or deduction of such Tax is then required by law. If any deduction or withholding by any applicable withholding agent for or on account of any Taxes imposed or levied by or on behalf of the United States or a taxing authority of or in the United States (includinga “Tax Jurisdiction”) will at any time be required to be made in respect of any payments made by the Company under or with respect to the Notes, for purposes including payments of this Section 4principal, redemption price, purchase price, interest or premium, then the Company will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each beneficial owner) owner of this Note who the Notes that is not a Non-U.S. Person (as defined below) after such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderwithholding, after deduction or withholding for imposition (including any such withholding, deduction or on account imposition in respect of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)) will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to:
(i1) any taxTaxes, assessment or other governmental charge that to the extent such Taxes would not have been imposed but for the Holder of a Note (Aor the beneficial owner for whose benefit such Holder holds such Note) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) having a current or former connection with the United States includingrelevant Tax Jurisdiction (other than a connection arising solely from the ownership or disposition of such Note, without limitationthe enforcement of rights under such Note), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America such Tax Jurisdiction, being or treated as having engaged in a resident thereof trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction; or
(b) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for U.S. federal income tax purposes or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States U.S. federal income tax;
(iv2) any taxHolder that is not the sole beneficial owner of the Notes, assessment or other governmental charge which a portion of the Notes, or that is payable otherwise than by withholding from a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of principal Additional Amounts had the beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of or interest on this Notethe payment;
(v3) any tax, assessment or other governmental charge Taxes required to be withheld by any paying agent from any payment of principal of or interest on this Note any note, if such payment can be made without such withholding by any at least one other paying agent;
(vi4) any taxTaxes, assessment to the extent such Taxes were imposed as a result of the presentation of a Note for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder or other governmental charge which beneficial owner would not otherwise have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(5) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes;
(6) any U.S. federal withholding tax imposed but as a result of the beneficial owner:
(a) being a controlled foreign corporation for U.S. federal income tax purposes related to the Company;
(b) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Code; or
(c) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(7) any estate, inheritance, gift, sales, transfer, excise, wealth, capital gains, personal property or similar Taxes;
(8) any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes to comply with any certification, informationidentification, documentation information or other reporting requirements concerning the nationalityrequirements, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is whether required by statute statute, treaty, regulation or by regulation administrative practice of the United States Treasury Department a Tax Jurisdiction, as a precondition to relief exemption from, or exemption from reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally eligible to provide such tax, assessment certification or other governmental chargedocumentation;
(vii9) any taxTaxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the date of the Indenture (or any amended or successor version that is substantively comparable), assessment any regulations promulgated thereunder or any other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or date of Indenture (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law amended or successor version described above) or any intergovernmental agreements (and any related law, regulation or official administrative guidance) implementing or complying with, or introduced in order to conform to, such Directivethe foregoing; or
(ix10) any combination of items (i), 1) through (ii), 9) above.
(iii), (iv), (v), (vi), (viib) and (viii) Except as specifically provided for in this Section 4(a); nor shall 4.07, the Company will not be required to make any payment for any Tax.
(c) If the Company becomes aware that it will be obligated to pay Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary any payment under or a member with respect to the Notes, the Company will deliver to the Trustee and Paying Agent promptly prior to the date of such partnership or a beneficial owner thereof, would not have been that payment an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary.
(d) The Company, if it is the applicable withholding agent, will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Company will furnish to the Trustee upon reasonable written request, within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or if, notwithstanding such Additional Amounts had entity’s efforts to obtain receipts, receipts are not obtained, other reasonable evidence of payments by such beneficiaryentity.
(e) The above obligations will survive any termination, settlordefeasance or discharge of the Indenture, member any transfer by a holder or beneficial owner been of its Notes, and will apply, mutatis mutandis, to any successor Person to the HolderCompany.
(f) As used in this Section 4.07 and under Section 3.03 hereof,
Appears in 2 contracts
Sources: Second Supplemental Indenture (Equinix Inc), First Supplemental Indenture (Equinix Inc)
Payment of Additional Amounts. If specified pursuant to, and subject to, Section 301, the provisions of this Section 1011 shall be applicable to Securities of any series. The Company shall Issuer or the Guarantors, as the case may be, shall, subject to the exceptions and limitations set forth below, pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note any Security who is a Non-U.S. Person (as defined below) United States Alien such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such HolderSecurity, after deduction or withholding by the Issuer, the Guarantors or any of their Paying Agents for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America (or any political subdivision or taxing authority thereof or therein), will shall not be less than the amount provided in this Note such Security to be then due and payable (such amountspayable. However, neither the “Additional Amounts”); provided, however, that Issuer nor the Company Guarantors shall not be required to make any payment of Additional Amounts additional amounts for or on account of:
(ia) any tax, assessment or other governmental charge that would not have been so imposed but for (Ai) the existence of any present or former connection between such Holder, Holder or the beneficial owner of such Security (or between a fiduciary, settlor, settler or beneficiary of, member or shareholder of, or possessor of a person holding a power over, such HolderHolder or such beneficial owner, if such Holder or such beneficial owner is an estate, estate or trust, or a member or shareholder of such Holder or such beneficial owner, if such Holder or such beneficial owner is a partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder or such beneficial owner (or such fiduciary, settlorsettler, beneficiary, memberperson holding a power, shareholder member or possessor, shareholder) being or having been a citizen or citizen, resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in therein or having or having had a permanent establishment therein, or (ii) such Holder's or such beneficial owner's present or former status as a personal holding company, foreign personal holding company, controlled foreign corporation or passive foreign investment company with respect to the United States of Americaor as a corporation that accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or (B) other governmental charge which would not have been so imposed but for the presentation by the Holder of this Note such Security for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iic) any estate, inheritance, gift, sales, transfer, excise, personal property tax or any similar tax, assessment or other governmental charge;
(iiid) any tax, assessment or other governmental charge imposed required to be withheld by reason any Paying Agent from any payment in respect of any Security, if such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxpayment can be made without such withholding by at least one other Paying Agent;
(ive) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments in respect of principal of or interest on this Notesuch Security;
(vf) any tax, assessment or other governmental charge required imposed on a Holder or beneficial owner of any tax, assessment or other governmental charge imposed on a Holder or beneficial owner of a Security or coupon that (i) actually or constructively owns 10 percent or more of the capital or profits interests of the Company or that is a controlled foreign corporation related to be withheld by any paying agent from any payment the Company through stock ownership or (ii) is a bank described in Section 881(c)(3)(A) of principal of or interest on this Note if such payment can be made without withholding by any other paying agentthe Code;
(vig) any tax, assessment or other governmental charge which would not have been imposed but for as a result of the failure to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America of the Holder or beneficial owner of this Notea Security or coupon, if such compliance is required by statute or by regulation of the United States Treasury Department States, as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixh) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (vii) and (viii) in this Section 4(ag); nor shall any Additional Amounts additional amounts be paid with respect to any payment on any such Security to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income for federal income tax purposes of a beneficiary or settlor settler with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts the additional amounts had such beneficiary, settlorsettler, member or beneficial owner been the HolderHolder of such Security.
Appears in 2 contracts
Sources: Indenture (Brandywine Operating Partnership Lp /Pa), Indenture (Brandywine Realty Trust)
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident holding of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Notes),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this Note, the Note if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations Issuer has given the Holders at least 30 days’ notice that may Holders shall be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect required to the Company within the meaning of the Code;provide such information and identification,
(viiiiv) any Taxes payable otherwise than by deduction or withholding or deduction that is from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual and is required to be made pursuant to that European Union Council Directive relating 2003/48/EC (as amended from time to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, time) or any law implementing or complying with, or introduced in order to conform to, such Directive; ,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid payment on the Note to any a Holder who that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) The Issuer will ensure that it maintains a paying agent, in a European Union Member State, that will not be obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(h) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 2 contracts
Sources: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The Company shall pay shall, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such pay additional amounts as may be are necessary so in order that every the net payment by the Company of principal of and interest on this Note the Securities to such Holdera Holder who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other similar governmental charge (each, a “Tax”) imposed upon such Holder by the United States of America or any taxing authority thereof or thereinStates, will not be less than the amount provided which would have been received by such Holder in this Note to be then due and payable (respect of such amounts, payments in the “Additional Amounts”)absence of such withholding or deduction; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment Tax to the extent such Tax is imposed by reason of the Holder (or other governmental charge that would not have been imposed but the beneficial owner for (A) the existence of any present or former connection between whose benefit such HolderHolder holds such Security), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, memberpartner, member or shareholder of the Holder if the Holder is an estate, nominee, trust, partnership, limited liability company or possessorcorporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
(b) having or having had any other connection with the United States (other than a connection arising solely as a result of the ownership of the Securities, the receipt of any payment or the enforcement of any rights hereunder), including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for United States federal income tax purposes or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(ivd) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Company as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and ) or any amended or successor provision; or
(e) being or having been a bank receiving payments on an extension of credit made pursuant to an loan agreement entered into in the regulations ordinary course of its trade or business;
(2) to any Holder that may be promulgated thereunder) is not the sole beneficial owner of the Company Securities, or (B) a controlled foreign corporation portion of the Securities, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Company within Holder, a beneficiary or settlor with respect to the meaning fiduciary, or a beneficial owner or member of the Codepartnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(viii3) to any Tax to the extent such Tax would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or other information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Securities, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or reduction of, such Tax;
(4) to any Tax that is imposed otherwise than by withholding by the Company or a paying agent from the payment;
(5) to any estate, inheritance, gift, sales, value added, excise, transfer, wealth, gains, personal property Tax or similar Tax;
(6) to any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that any European Union Directive relating to directive on the taxation of savings adopted on June 3savings, 2003 by or any similar directive of any jurisdiction outside of the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, to any such Directive; ordirective;
(ix7) to any Tax required to be withheld by any paying agent from any payment of principal of or interest on any Security, if such payment can be made without such withholding by at least one other paying agent;
(8) to any Tax to the extent such Tax would not have been imposed but for the presentation by the Holder or beneficial owner of any Security, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(9) to any Tax to the extent such Tax is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Securities in the ordinary course of its lending business or (ii) that is neither (A) buying the Securities for investment purposes only nor (B) buying the Securities for resale to a third-party that either is not a bank or holding the Securities for investment purposes only;
(10) to any Tax imposed under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or other official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Internal Revenue Code;
(11) to any backup withholding Tax imposed pursuant to Section 3406 of the Code (or any amended or successor provision);
(12) (13) to any Tax imposed pursuant to Section 871(h)(6) or 881(c)(6) of the Code (or any amended or successor provisions); or in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in the clauses above. Except as specifically provided under this Section 4(a); nor shall 6, the Company is not required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary Tax imposed by any government or partnership to the extent that a beneficiary any political subdivision or settlor with respect to such fiduciary taxing authority of or a member of such partnership in any government or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Note Agreement (Praxair Inc), Indenture (Praxair Inc)
Payment of Additional Amounts. (a) The Company shall Company, and each Subsidiary Guarantor, shall, subject to the exceptions set forth below, pay to Holders of the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such Notes additional amounts (“Additional Amounts”) as may be necessary so that every net payment of interest, premium upon redemption of the Notes or principal of and interest on this Note to such Holderthe Holders shall not be less than the amount provided for in the Notes. The term “net payment” means the amount that the Company, any Subsidiary Guarantor or a Paying Agent pays any Holder after deduction deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges imposed with respect to that payment by the British Virgin Islands or any jurisdiction where the Company or any Subsidiary Guarantor is incorporated, resident or doing business for tax purposes or from or through which any payment in respect of the Notes is made by the paying agent or the Company, or any political subdivision thereof (a “Relevant Jurisdiction”), or by any taxing authority of a Relevant Jurisdiction.
(b) The Company, and each Subsidiary Guarantor, shall not pay Additional Amounts to any Holder for or solely on account of any of the following:
(i) any present or future taxes, duties, assessments or other governmental charges that would not have been imposed but for any present or former connection between the Holder (or a fiduciary, settlor, beneficiary, member or shareholder of the Holder) and the Relevant Jurisdiction (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, capital gains, excise, personal property tax, sales, transfer, gift or similar tax, assessment or other governmental charge imposed upon such Holder by with respect to the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:Notes;
(iiii) any taxtaxes, assessment duties, assessments or other governmental charge charges that would not have been imposed but for the failure of the Holder or any other Person to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Jurisdiction, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law, regulation or by an applicable income tax treaty to which the Relevant Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge (Aincluding withholding taxes payable on interest payments under the Notes) and the existence Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or information;
(iv) any tax, duty, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on or in respect of the Notes;
(v) any present or former connection between such Holderfuture taxes, duties, assessments or between other governmental charges with respect to a fiduciaryNote presented for payment, settlorwhere presentation is required, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such the payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
(iivi) any estatewithholding or deduction that is required to be made pursuant to EC Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, inheritance2000 on the taxation of savings income, giftor any law implementing or complying with, salesor introduced in order to conform to, transfer, excise, personal property or similar tax, assessment or other governmental chargesuch Directive;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(vvii) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of the principal of of, or premium or interest on this Note any Note, if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but results from the presentation of any Note for payment and the failure to comply with certification, information, documentation payment can be made without such withholding or other reporting requirements concerning deduction by the nationality, residence, identity or connections with the United States of America presentation of the Holder of this Note, if such compliance is required Note for payment by statute or by regulation at least one other available paying agent of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the CodeCompany;
(viii) any withholding or deduction payment on the Note to a Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to fiduciary, a partnership, a limited liability company or a person other than the taxation sole beneficial owner of savings adopted on June 3any such payment, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such partnership a partnership, an interestholder in such a limited liability company or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note; or
(ix) in the case of any combination of the items listed above.
(c) Upon request, the Company or any Subsidiary Guarantor, as applicable, shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company or such Subsidiary Guarantor has paid any Additional Amount.
(d) Any reference in this Indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by us will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this section.
(e) In the event of any merger or other transaction described and permitted under Section 4.1, all references to the British Virgin Islands, the laws or regulations of the British Virgin Islands, and the political subdivisions or taxing authorities of the British Virgin Islands under this Section 3.12 and under Article IV and Section 5 of Exhibit A will be deemed to also include the jurisdiction of incorporation or tax residence of the Surviving Entity, if different from the British Virgin Islands, and any political subdivision therein or thereof, law or regulations, and any taxing authority of such other jurisdiction or any political subdivision therein or thereof, respectively.
Appears in 2 contracts
Sources: Indenture (Arcos Dorados Holdings Inc.), Indenture (Arcos Dorados Holdings Inc.)
Payment of Additional Amounts. The Company All payments of Principal and interest in respect of the Securities shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal free and clear of and interest on this Note to such Holder, after without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed upon or levied by or on behalf of the government of the United Kingdom or of any territory of the United Kingdom or by any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the extent such Holder Taxes are required to be withheld or deducted by law or by the United States interpretation or administration thereof. If the Company is so required to withhold or deduct any amount for or on account of America Taxes from any payment made in respect of the Securities, the Company shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts) after such withholding or any taxing authority thereof or therein, will deduction shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to Taxes:
(ia) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, Holder or beneficial owner of the Securities (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderHolder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United States Kingdom or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or present in having or having had a permanent establishment therein;
(b) that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;
(c) that are payable other than by withholding from payments of Principal of or interest on the United States Securities;
(d) that would not have been imposed but for the failure of Americathe applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes;
(Be) that would not have been imposed but for the presentation of this Note a Security (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is was duly provided for, whichever occurred later;
(iif) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is are imposed on a payment to an individual and is are required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(g) that would not have been imposed if presentation for payment of the relevant Securities had been made to a Paying Agent other than the Paying Agent to which the presentation was made;
(h) that would not have been imposed but for a failure by the Holder or beneficial owner (or any financial institution through which the Holder or beneficial owner holds any Security through which payment on the Security is made) to comply with any certification, information, identification, documentation or other reporting requirements (including entering into and complying with an agreement with the U.S. Internal Revenue Service or any other governmental authority) imposed pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code as in effect on the date of issuance of the Notes or any successor or amended version of such provisions, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the U.S. Internal Revenue Code (or any law implementing such an intergovernmental agreement); or
(ixi) any combination of items the foregoing clauses (i), a) through (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(ah); nor shall any Additional Amounts be paid with respect to any payment of the Principal of or interest on any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of the Security. The Company shall maintain, in respect of Securities of each series outstanding, at least one Paying Agent located outside the United Kingdom. In the event that a Paying Agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a Paying Agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to any law implementing European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such Directive. The obligation of the Company to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all amounts in respect of the Securities.”
SECTION 2.03 Amendments to Section 4.08
Appears in 2 contracts
Sources: Supplemental Indenture (Glaxosmithkline Capital PLC), Supplemental Indenture (Glaxosmithkline Capital Inc)
Payment of Additional Amounts. The All payments in respect of the Notes will be made by or on behalf of the Company shall pay to the Holder (includingwithout withholding or deduction for, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of of, any present or future taxtaxes, assessment duties, assessments or other governmental charge charges of whatever nature, imposed upon such Holder or levied by the United States of America or any taxing authority thereof or therein, unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company will pay to a holder who is not a United States person such additional amounts on the Notes as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, such Notes to a holder, after such withholding or deduction, will not be less than the amount provided in this Note such Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company shall foregoing obligation to pay additional amounts will not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as;
(A) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(B) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of such Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States;
(C) being a controlled foreign corporation related to the Company directly, indirectly or constructively through stock ownership for United States federal income tax purposes;
(D) being an owner of America a 10% or treated greater interest in voting stock of the Company within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the ‘‘Code’’) or any successor provision; or
(E) being a resident thereof or being or having been engaged bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business business;
(2) to any holder that is not the sole beneficial owner of such Notes, or present in a portion of such Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly from the Company its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the holder or beneficial owner of the applicable Note, to comply with any applicable certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the United States or (B) any taxing authority therein or by an applicable income tax treaty to which the presentation of this Note for payment on United States is a date more than 30 days after the later of (x) the date on which party as a precondition to exemption from such payment becomes due and payable and (y) the date on which payment thereof is duly provided fortax, assessment or other governmental charge;
(ii4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding from the payment;
(5) to any estate, inheritance, gift, sales, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii6) to any taxwithholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any other Directive amending, assessment supplementing or other governmental charge imposed by reason of replacing such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of AmericaDirective, or as a corporation which accumulates earnings any law implementing or complying with, or introduced in order to avoid United States federal income taxconform to, such Directive or Directives;
(iv7) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any such Note, if such payment can be made without such withholding by any at least one other paying agentagent in a member state of the European Union;
(vi) 8) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning presentation by the nationality, residence, identity or connections with the United States holder of America of the Holder of this any such Note, if where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder or beneficial owner thereof would have been entitled to additional amounts had the Note been presented for payment on the last day of such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge30 day period;
(vii9) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to Sections 1471 through 1474 of the taxation of savings adopted on June 3, 2003 by the European Union’s Economic Code and Financial Affairs Council, related Treasury regulations and pronouncements or any law successor provisions thereto (that are substantively comparable and not materially more onerous to comply with) and any regulations or official law, agreement or interpretations thereof in any jurisdiction implementing or complying with, or introduced in order to conform to, such Directivean intergovernmental approach thereto; or
(ix10) in the case of any combination of items (i)1)-(9) of this clause 8. Except as specifically provided by this provision, (ii)the Company will not be required to make any payment for any tax, (iii)duty, (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall assessment or governmental charge of whatever nature imposed by any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Ball Corp), Second Supplemental Indenture (Ball Corp)
Payment of Additional Amounts. (a) The Company shall pay Issuer will, subject to the Holder exceptions and limitations set forth below, pay such additional amounts (including, for purposes “Additional Amounts”) as will result in the receipt by each beneficial owner of this Section 4, the beneficial owner) of this a Note who that is not a Non-U.S. Person United States person (as defined in clause (c) below) of such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderamounts, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof in the United States (including any withholding or therein, will not be less than deduction with respect to the amount provided in this Note to be then due and payable (payment of such additional amounts, the “Additional Amounts”)) as would have been received had no such withholding or deduction been required; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been is imposed but by reason of the Holder (or the beneficial owner for (A) the existence of any present or former connection between whose benefit such HolderHolder holds such Note), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder or other equity owner of, or possessor of a power over, such Holder, the Holder or beneficial owner if such the Holder or beneficial owner is an estate, trust, partnership partnership, corporation or corporationother entity, and being considered as:
(a) being or having been engaged in a trade or business in the United States includingor having been present in the United States or having had a permanent establishment in the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment thereon or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the foreign tax exempt organization for United States of America, federal income tax purposes or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(ivd) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Issuer as defined in Section 871(h)(3)(B871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and or any successor provision; or
(e) being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the regulations ordinary course of its trade or business;
(2) to any Holder that may be promulgated thereunder) is not the sole beneficial owner of the Company Notes, or (B) a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3Holder, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereof, or member of the partnership or limited liability company would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the Holderfailure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of such Holder or other person, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding or deducting from payments on the Notes;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, treaty, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(7) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or premium, if any, or interest on any note, if such payment can be made without such withholding by at least one other Paying Agent;
(8) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(9) to any tax, assessment or other governmental charge imposed under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, any intergovernmental agreement or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(10) in the case of any combination of clauses (1), (2), (3), (4), (5), (6), (7), (8) and (9).
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 2.07, the Issuer will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Section 2.07, the term “United States” means the United States of America (including the states of the United States and the District of Columbia and any political subdivision thereof) and the term “United States person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person under any applicable Treasury regulations), or any estate or trust the income of which is subject to United States federal income taxation regardless of its source.
Appears in 2 contracts
Sources: First Supplemental Indenture (Emerson Electric Co), First Supplemental Indenture (Emerson Electric Co)
Payment of Additional Amounts. (a) The Company shall pay to make all payments in respect of the Holder (includingNotes free and clear of, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within Bermuda, Chile or by or within any political subdivision thereof or any authority therein or thereof having power to tax or any other jurisdiction through which payments are made in respect of the Notes (“Taxes”), unless such withholding or deduction is required by law or by the interpretation or administration thereof. In the event of any such withholding or deduction of Taxes, the Company will pay to Holders such additional amounts (“Additional Amounts”) as will result in the receipt by each Holder of the net amount that would otherwise have been receivable by such Holder in the absence of such withholding or deduction, except that no such Additional Amounts will be payable:
(i) in respect of any tax, assessment or other governmental charge Taxes that would not have been imposed so withheld or deducted but for (A) the existence of any present or former connection including, without limitation, a permanent establishment in Bermuda or between such the Holder, applicable recipient of payment or beneficial owner of the Note or any payment in respect of such Note (or, if the Holder or beneficial owner is an estate, nominee, trust, partnership, corporation or other business entity, between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such the Holder, if such Holder is applicable recipient of a payment or beneficial owner) and an estateauthority with the power to levy or otherwise impose or assess a Tax, trust, partnership or corporation, and other than the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident mere receipt of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) or the date on which payment thereof is duly provided formere holding or ownership of such Note or beneficial interest or the enforcement of rights thereunder;
(ii) in respect of any Taxes that would not have been so withheld or deducted if the Note had been presented for payment within 30 days after the Relevant Date to the extent presentation is required (except to the extent that the Holder would have been entitled to Additional Amounts had the Note been presented for payment on the last day of such 30-day period);
(iii) in respect of any Taxes that would not have been so withheld or deducted but for the failure by the Holder or the beneficial owner of the Note or any payment in respect of such Note to (i) make a customary declaration of non-residence, or any other claim or filing for exemption, to which it is entitled or (ii) comply with any customary certification, identification, information, documentation or other reporting requirement concerning its nationality, residence, identity or connection with Bermuda, Chile or with any jurisdiction through which payments are made; provided that such declaration or compliance was required as a precondition to exemption from all or part of such Taxes and the Company has given the Holders at least 30 days prior notice that they will be required to comply with such requirements;
(iv) in respect of any estate, inheritance, gift, value added, sales, transferuse, excise, transfer, personal property or similar taxtaxes, assessment duties, assessments or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Notecharges;
(v) in respect of any tax, assessment Taxes that are payable otherwise than by deduction or other governmental charge required withholding from payments on the Notes;
(vi) in respect of any taxes that would not have been so imposed if the Holder had presented the Note for payment (where presentation is required) to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other another paying agent;
(vivii) in respect of any taxpayment to a Holder of a Note that is a fiduciary or partnership (including an entity treated as a partnership for tax purposes) or any Person other than the sole beneficial owner of such payment or Note, assessment to the extent that a beneficiary or other governmental charge which settlor with respect to such fiduciary, a member of such partnership or the beneficial owner of such payment or Note would not have been imposed but for entitled to the failure to comply with certificationAdditional Amounts had such beneficiary, informationsettlor, documentation member or other reporting requirements concerning beneficial owner been the nationality, residence, identity or connections with the United States of America of the actual Holder of this such Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) in respect of any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that Council Directive 2003/48/EC or any other European Union Directive relating to directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such Directivea directive; or
(ix) in respect of any combination of items paragraphs (i), (ii), (iii), (iv), (v), (vi), (vii) and through (viii) in this Section 4(a); nor shall any above. Notwithstanding the foregoing, the limitations on the Company’s obligations to pay Additional Amounts set forth in paragraph (iii) will not apply if the provision of any certification, identification, information, documentation or other reporting requirement described in such clause (iii) would be paid materially more onerous, in form, in procedure or in the substance of information disclosed, to any a Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulations and administrative practice (such as IRS Forms W-8BEN and W-9).
(b) Upon written request from the HolderTrustee, the Company shall furnish to the Trustee documentation reasonably satisfactory to the Trustee evidencing payment of any taxes so deducted or withheld. Copies of such documentation will be made available by the Trustee to Holders upon written request to the Trustee.
(c) The Company shall promptly pay when due any present or future stamp, court or similar documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery or registration of each Note or any other document or instrument referred to herein or therein, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Bermuda or Chile and except, in certain cases, for taxes, charges or similar levies resulting from certain registration of transfer or exchange of Notes.
Appears in 2 contracts
Sources: Indenture (GeoPark LTD), Indenture (GeoPark Holdings LTD)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) holder of this Note who is a Non-U.S. Person United States Alien (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderholder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “"Additional Amounts”"); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holderholder, if such Holder holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holderholder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s holder's past or present status as a passive foreign investment company, a controlled foreign corporation corporation, a personal holding company or a foreign personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder holder or beneficial owner of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “"Code”"), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viiivii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder holder who is a fiduciary partnership or partnership other than the sole beneficial owner of this Note to the extent that a beneficiary or settlor with respect to such fiduciary fiduciary, or a member of such partnership or a beneficial owner thereof, thereof would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderholder.
Appears in 2 contracts
Sources: Note Agreement (Wal Mart Stores Inc), Note Agreement (Wal Mart Stores Inc)
Payment of Additional Amounts. The [Subject to the exemptions and limitations set forth below, the Company shall pay additional amounts to the Holder (including, for purposes of this Section 4, the beneficial owner) owner of this Note who that is a “Non-U.S. Person (United States person,” as defined below) such additional amounts as may be necessary so , in order to ensure that every net payment on such Note shall not be less, due to payment of principal of United States withholding tax, than the amount then otherwise due and interest payable. For this purpose, a “net payment” on this Note to such Holdermeans a payment by the Company or any paying agent, including payment of principal and interest, after deduction or withholding for or on account of any present or future tax, assessment, or other governmental charge of the United States (other than a territory or possession). These additional amounts shall constitute additional interest on this Note. The Company shall not be required to pay additional amounts, however, in any of the circumstances described in items (1) through (14) below. 7 This form provides for Notes that are not subject to redemption at the option of the Company or repayment at the option of the holder. The form, as used, may be modified to provide, alternatively, for redemption at the option of the Company or repayment at the option of the holder, with the terms and conditions of such redemption or repayment, as the case may be, including provisions regarding sinking funds, if applicable, redemption prices, and notice periods, set forth therein.
(1) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) having a relationship with the United States as a citizen, resident, or otherwise;
(b) having had such a relationship in the past; or
(c) being considered as having had such a relationship.
(2) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) being treated as present in or engaged in a trade or business in the United States;
(b) being treated as having been present in or engaged in a trade or business in the United States in the past;
(c) having or having had a permanent establishment in the United States; or
(d) having or having had a qualified business unit which has the U.S. dollar as its functional currency.
(3) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) private foundation or other tax-exempt organization;
(d) passive foreign investment company;
(e) controlled foreign corporation; or
(f) corporation which has accumulated earnings to avoid United States federal income tax.
(4) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Company’s stock entitled to vote.
(5) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business. For purposes of items (1) through (5) above, “beneficial owner” includes, without limitation, the holder, and a fiduciary, settlor, partner, member, shareholder, or beneficiary of the holder if the holder is an estate, trust, partnership, limited liability company, corporation, or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder.
(6) Additional amounts shall not be payable to any beneficial owner of this Note that is:
(a) a fiduciary;
(b) a partnership;
(c) a limited liability company;
(d) another fiscally transparent entity; or
(e) not the sole beneficial owner of this Note, or any portion of this Note. However, this exception to the obligation to pay additional amounts shall only apply to the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner, partner or member of the partnership, limited liability company, or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, partner, beneficial owner, or member received directly its beneficial or distributive share of the payment.
(7) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the failure of the beneficial owner of this Note or any other person to comply with applicable certification, identification, documentation or other information reporting requirements. This exception to the obligation to pay additional amounts shall apply only if compliance with such reporting requirements is required as a precondition to exemption from such tax, assessment or other governmental charge imposed upon such Holder by statute or regulation of the United States of America or any taxing authority thereof or therein, will not be less than by an applicable income tax treaty to which the amount provided in this Note to be then due and payable United States is a party.
(such amounts, the “8) Additional Amounts”); provided, however, that the Company amounts shall not be required to make any payable if a payment on this Note is reduced as a result of Additional Amounts for or on account of:
(i) any tax, assessment assessment, or other governmental charge that would is collected or imposed by any method other than by withholding from a payment on this Note by the Company or any paying agent.
(9) Additional amounts shall not have been imposed but for (A) the existence be payable if a payment on this Note is reduced as a result of any present or former connection between such Holdertax, assessment, or between other governmental charge that is imposed or withheld by reason of a fiduciarychange in law, settlor, beneficiary of, member or shareholder ofregulation, or possessor administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional amounts shall not be payable if a payment on this Note is reduced as a result of a power overany tax, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holderassessment, or such fiduciary, settlor, beneficiary, member, shareholder other governmental charge that is imposed or possessor, being or having been a citizen or resident withheld by reason of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in presentation by the United States of America, or (B) the presentation beneficial owner of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later.
(11) Additional amounts shall not be payable if a payment on this Note is reduced as result of any:
(a) estate tax;
(iib) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax; or
(i) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment assessment, or other governmental charge;.
(iii12) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment companyassessment, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any a payment of principal of or interest on this Note if such payment can be made without such withholding by any other paying agent;.
(vi13) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment assessment, or other governmental charge which would not have been that is imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America withheld by reason of the Holder application of this Note, if such compliance is required by statute or by regulation sections 1471 through 1474 of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”or any successor provisions), and the regulations that may be promulgated or any related administrative regulation, pronouncement, or agreement thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilofficial interpretations thereof, or any law implementing an intergovernmental approach thereto whether currently in effect or complying withas published and amended from time to time.
(14) Additional amounts will not be payable if a payment on a debt security is reduced as a result of any tax, assessment, or introduced in order to conform to, such Directive; orother governmental charge that is imposed or withheld by reason of the payment being treated as a dividend or dividend equivalent for U.S. tax purposes.
(ix15) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any combination of items (i), 1) through (ii), (iii), (iv), (v), (vi), (vii14) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 2 contracts
Sources: Registered Senior Note (Raymond James Financial Inc), Registered Senior Note (Raymond James Financial Inc)
Payment of Additional Amounts. The Company shall pay to the any Holder (includingwhich term, for purposes of this Section 4, the includes each beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and premium, if any, and interest on this Note to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection (other than a connection arising solely from the ownership of the Notes or the receipt of payments in respect of the Notes) between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States includingStates, without limitation, including such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof of the United States or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note such Notes for payment on a date more than 30 days after the later of (x) the date on which such that payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States U.S. federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or premium, if any, or interest on this Notesuch Holder’s Notes;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of and premium, if any, or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure of the Holder to comply with our request to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this NoteHolder, if such compliance is required by statute or by regulation of the United States U.S. Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge, including, without limitation, any withholding required pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”);
(vii) any tax, assessment or other governmental charge imposed on interest received by (AB) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect that is related to the Company within the meaning of Section 864(d)(4) of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a5(a); nor . In addition, the Company shall not pay any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such that fiduciary or a member of such that partnership or a beneficial owner thereof, thereof would not have been entitled to the payment of such those Additional Amounts had such that beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 2 contracts
Sources: Note Agreement (Wal Mart Stores Inc), Global Security Note (Wal Mart Stores Inc)
Payment of Additional Amounts. The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company or the Paying Agent of the principal of and interest on this Note the Notes to such Holdera Holder who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof or therein, in the United States will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged a personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of the Parent as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business business;
(2) to any Holder that is not the sole beneficial owner of the Notes, or present in a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or the Paying Agent from the payment;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or (B) the presentation of this Note for payment on a date administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(ii6) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii7) to any tax, assessment withholding or other governmental charge deduction that is imposed by reason of such ▇▇▇▇▇▇’s past on a payment to an individual and that is required to be made pursuant to any law implementing or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of Americacomplying with, or as a corporation which accumulates earnings introduced in order to avoid United States federal income taxconform to, any European Union Directive on the taxation of savings;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) 8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Note, if such payment can be made without such withholding by any at least one other paying agent;
(vi9) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this any Note, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition to relief or exemption from such taxdate on which payment thereof is duly provided for, assessment or other governmental chargewhichever occurs later;
(vii10) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to Sections 1471 through 1474 of the taxation of savings adopted on June 3, 2003 by Code and related Treasury regulations and pronouncements (the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such DirectiveForeign Account Tax Compliance Act); or
(ix11) in the case of any combination of items (i1), (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (8), (9) and (viii) 10). The Notes are subject in this Section 4(a); nor shall any Additional Amounts be paid all cases to any Holder who is a fiduciary tax, fiscal or partnership other law or regulation or administrative or judicial interpretation applicable to the extent that a beneficiary Notes. Except as specifically provided under this paragraph “Payments of Additional Amounts,” the Company will not be required to make any payment for any tax, assessment or settlor with respect to such fiduciary other governmental charge imposed by any government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Directv), Third Supplemental Indenture (Directv)
Payment of Additional Amounts. The [Subject to the exemptions and limitations set forth below, the Company shall pay additional amounts to the Holder (including, for purposes of this Section 4, the beneficial owner) owner of this Note who that is a “Non-U.S. Person (United States person,” as defined below) such additional amounts as may be necessary so , in order to ensure that every net payment on such Note shall not be less, due to payment of principal of United States withholding tax, than the amount then otherwise due and interest payable. For this purpose, a “net payment” on this Note to such Holdermeans a payment by the Company or any paying agent, including payment of principal and interest, after deduction or withholding for or on account of any present or future tax, assessment, or other governmental charge of the United States (other than a territory or possession). These additional amounts shall constitute additional interest on this Note. The Company shall not be required to pay additional amounts, however, in any of the circumstances described in items (1) through (14) below.
(1) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) having a relationship with the United States as a citizen, resident, or otherwise;
(b) having had such a relationship in the past; or
(c) being considered as having had such a relationship.
(2) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note:
(a) being treated as present in or engaged in a trade or business in the United States;
(b) being treated as having been present in or engaged in a trade or business in the United States in the past;
(c) having or having had a permanent establishment in the United States; or
(d) having or having had a qualified business unit which has the U.S. dollar as its functional currency.
(3) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being or having been a:
(a) personal holding company;
(b) foreign personal holding company;
(c) private foundation or other tax-exempt organization;
(d) passive foreign investment company;
(e) controlled foreign corporation; or
(f) corporation which has accumulated earnings to avoid United States federal income tax.
(4) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Company’s stock entitled to vote.
(5) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the beneficial owner of this Note being a bank extending credit pursuant to a loan agreement entered into in the ordinary course of business. For purposes of items (1) through (5) above, “beneficial owner” includes, without limitation, the holder, and a fiduciary, settlor, partner, member, shareholder, or beneficiary of the holder if the holder is an estate, trust, partnership, limited liability company, corporation, or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder.
(6) Additional amounts shall not be payable to any beneficial owner of this Note that is:
(a) a fiduciary;
(b) a partnership;
(c) a limited liability company;
(d) another fiscally transparent entity; or
(e) not the sole beneficial owner of this Note, or any portion of this Note. However, this exception to the obligation to pay additional amounts shall only apply to the extent that a beneficiary or settlor in relation to the fiduciary, or a beneficial owner, partner or member of the partnership, limited liability company, or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, partner, beneficial owner, or member received directly its beneficial or distributive share of the payment.
(7) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment, or other governmental charge that is imposed or withheld solely by reason of the failure of the beneficial owner of this Note or any other person to comply with applicable certification, identification, documentation or other information reporting requirements. This exception to the obligation to pay additional amounts shall apply only if compliance with such reporting requirements is required as a precondition to exemption from such tax, assessment or other governmental charge imposed upon such Holder by statute or regulation of the United States of America or any taxing authority thereof or therein, will not be less than by an applicable income tax treaty to which the amount provided in this Note to be then due and payable United States is a party.
(such amounts, the “8) Additional Amounts”); provided, however, that the Company amounts shall not be required to make any payable if a payment on this Note is reduced as a result of Additional Amounts for or on account of:
(i) any tax, assessment assessment, or other governmental charge that would is collected or imposed by any method other than by withholding from a payment on this Note by the Company or any paying agent.
(9) Additional amounts shall not have been imposed but for (A) the existence be payable if a payment on this Note is reduced as a result of any present or former connection between such Holdertax, assessment, or between other governmental charge that is imposed or withheld by reason of a fiduciarychange in law, settlor, beneficiary of, member or shareholder ofregulation, or possessor administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later.
(10) Additional amounts shall not be payable if a payment on this Note is reduced as a result of a power overany tax, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holderassessment, or such fiduciary, settlor, beneficiary, member, shareholder other governmental charge that is imposed or possessor, being or having been a citizen or resident withheld by reason of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in presentation by the United States of America, or (B) the presentation beneficial owner of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later.
(11) Additional amounts shall not be payable if a payment on this Note is reduced as result of any:
(a) estate tax;
(iib) inheritance tax;
(c) gift tax;
(d) sales tax;
(e) excise tax;
(f) transfer tax;
(g) wealth tax;
(h) personal property tax; or
(i) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment assessment, or other governmental charge;.
(iii12) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment companyassessment, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any a payment of principal of or interest on this Note if such payment can be made without such withholding by any other paying agent;.
(vi13) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any tax, assessment assessment, or other governmental charge which would not have been that is imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America withheld by reason of the Holder application of this Note, if such compliance is required by statute or by regulation sections 1471 through 1474 of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”or any successor provisions), and the regulations that may be promulgated or any related administrative regulation, pronouncement, or agreement thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilofficial interpretations thereof, or any law implementing an intergovernmental approach thereto whether currently in effect or complying withas published and amended from time to time.
(14) Additional amounts will not be payable if a payment on a debt security is reduced as a result of any tax, assessment, or introduced in order to conform to, such Directive; orother governmental charge that is imposed or withheld by reason of the payment being treated as a dividend or dividend equivalent for U.S. tax purposes.
(ix15) Additional amounts shall not be payable if a payment on this Note is reduced as a result of any combination of items (i), 1) through (ii), (iii), (iv), (v), (vi), (vii14) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 2 contracts
Sources: Subordinated Note Agreement (Raymond James Financial Inc), Subordinated Note Agreement (Raymond James Financial Inc)
Payment of Additional Amounts. The Company shall pay shall, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts (“Additional Amounts”) as are necessary in order that the net payment by the Company of the principal of, premium, if any, and interest on the Notes to a Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is not a Non-U.S. Person United States person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderherein), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required apply:
(a) to make any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary Holder, being considered as:
(1) being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
(2) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment or the enforcement of any rights thereunder), including being or having been a citizen or resident of the United States;
(3) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
(4) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision; or
(5) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(b) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of Additional Amounts for had the beneficiary, settlor, beneficial owner or on account of:member received directly its beneficial or distributive share of the payment;
(ic) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or beneficial owner of the Notes to comply with the Company’s request or a request of the Company’s agent to satisfy any present certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof the Holder or beneficial owner of the Notes, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from such tax, assessment or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forother governmental charge;
(iid) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from the payment;
(e) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iiif) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Note, if such payment can be made without such withholding by any at least one other paying agent;
(vig) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this any Note, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition to relief or exemption from such taxdate on which payment thereof is duly provided for, assessment or other governmental chargewhichever occurs later;
(viih) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixi) in the case of any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (viig) and (viii) h). The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 4(a); nor 2.5, the Company shall not be required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary tax, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary other governmental charge imposed by any government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Seventh Supplemental Indenture (DOVER Corp), Sixth Supplemental Indenture (DOVER Corp)
Payment of Additional Amounts. The Company shall (a) All payments by the Issuer in respect of the Securities will be made without withholding or deduction for or on account of any present or future taxes, duties, assessments, fees or other governmental charges of whatever nature and any fines, penalties or interest related thereto (collectively, “Taxes”) imposed or levied by or on behalf of the Cayman Islands or Brazil or, following any merger, consolidation, transfer, liquidation, winding-up, dissolution or assumption of obligations permitted hereunder, the jurisdiction in which the resulting, surviving or transferee Person is incorporated, resident for tax purposes or treated as engaged in business, or, in each case, any political subdivision thereof or taxing authority therein (each, a “Taxing Jurisdiction”), unless such withholding or deduction is required by law. In that event, the Issuer will pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) each holder such additional amounts (“Additional Amounts”) as may be necessary so in order that every net payment of principal of and interest made by the Issuer on this Note to such Holder, the Securities after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge Tax that would have been imposed upon or as a result of such Holder payment by the United States of America or any taxing authority thereof or therein, Taxing Jurisdiction will not be less than the amount provided in this Note to be then due and payable (on such amounts, the “Securities without such withholding or deduction. The foregoing obligation to pay Additional Amounts”); provided, however, that the Company shall will not be required to make any payment of Additional Amounts for or on account ofapply to:
(i) any tax, assessment or other governmental charge that Tax which would not have been imposed but for (A) the existence of any present or former connection between such Holder, a Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, a trust, a partnership or a corporation) or beneficial owner, on the one hand, and the United States Taxing Jurisdiction, on the other hand, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder member or possessor, shareholder) or beneficial owner being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in a trade or business or present in the United States of Americatherein or having, or having had, a permanent establishment therein, but not including the mere receipt of such payment or the ownership or holding of such Securities;
(Bii) any Tax which would not have been so imposed but for the presentation of this Note by such Holder for payment (where presentation is required) on a date more than 30 thirty calendar days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargewhichever occurs later;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which extent that the Taxes would not have been imposed but for the failure of such Holder or beneficial owner to timely comply with any certification, information, documentation identification or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America Taxing Jurisdiction of the Holder of this Note, if (a) such compliance is required or imposed by statute statute, regulation or by regulation other applicable law of the United States Treasury Department such Taxing Jurisdiction as a precondition to relief or exemption from all or a part of such tax, assessment Tax and (b) at least thirty calendar days prior to the date on which the Issuer applies this clause (iii) the Issuer will have notified all Holders that some or other governmental chargeall Holders shall be required to comply with such requirement;
(viiiv) any taxestate, assessment inheritance, gift, sales, transfer or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company personal property Tax or (B) a controlled foreign corporation with respect to the Company within the meaning of the Codesimilar Tax;
(viiiv) any Tax payable other than by deduction or withholding from payments of principal or deduction that is imposed of interest on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such DirectiveSecurities; or
(ixvi) any combination of items (i), (ii), (iii), (iv), ) through (v) above.
(b) The Issuer shall also pay any present or future stamp, court or documentary taxes or any other excise taxes, charges or similar levies which arise in any jurisdiction from the execution, delivery, registration or the making of payments in respect of the Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of any Taxing Jurisdiction other than those resulting from, or required to be paid in connection with, the enforcement of the Securities following the occurrence of any Default or Event of Default (each as defined below), .
(vi), (viic) and (viii) in this Section 4(a); nor shall any No Additional Amounts shall be paid with respect to any a payment on Securities to a Holder who that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the receive payment of such the Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the Holder.
(d) The Issuer will provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof, if available) evidencing the payment of taxes in any Taxing Jurisdiction in respect of which the Issuer has paid any Additional Amounts. Copies of such documentation will be made available to the Holders or the Paying Agents, as applicable, upon request therefor.
(e) The Issuer will:
(i) at least ten Business Days prior to the first Payment Date for the Securities (and at least ten Business Days prior to each succeeding Payment Date or any Redemption Date if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate), deliver to the Trustee and each Paying Agent an Officer’s Certificate (i) specifying
Appears in 2 contracts
Payment of Additional Amounts. The Company shall will pay as additional interest on the Notes or Coupons to the Holder (including, for purposes holder of this Section 4, the beneficial owner) of this any Note or Coupon who is a Non-U.S. Person United States Alien (as defined below) such additional amounts Additional Amounts as may be necessary so in order that every net payment by the Company or any Paying Agent of the principal of and or interest on this such Note to such Holderor Coupons (including upon redemption), after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in this such Note or in such Coupon to be then due and payable (before any such amountstax, the “Additional Amounts”)assessment or other governmental charge; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply to:
(ia) any tax, assessment or other governmental charge that which would not have been so imposed but for (Ai) the existence of any present or former connection between such Holder, holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a person having a power over, such Holderholder, if such Holder holder is an estate, a trust, a partnership or a corporation, ) and the United States States, including, without limitation, such Holder, holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, person having such a power) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in a trade or business therein or being or having been present in the United States of Americatherein or having or having had a permanent establishment therein, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) the failure of such holder to comply with any estate, inheritance, gift, sales, transfer, excise, personal property requirement under United States income tax laws or similar regulations to establish entitlement to exemption from such tax, assessment or other governmental charge, (iii) such holder's present or former status as a personal holding company or a foreign personal holding company with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company with respect to the United States, as a foreign tax exempt organization with respect to the United States or as a corporation which accumulates earnings to avoid United States Federal income tax, or (iv) payment being made in the United States;
(iiib) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past the holder (i) owning or present status having owned, directly or indirectly, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Company, (ii) being a bank receiving interest described in Section 881(c)(3)(A) of the United States Internal Revenue Code of 1986, as a passive foreign investment companyamended, or (iii) being a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings that is related to avoid United States federal income taxthe Company by stock ownership;
(ivc) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the holder of such Note or Coupon for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for and notice is given to holders, whichever occurs later;
(d) any estate, inheritance, gift, sales, transfer, personal property, wealth, interest equalization or any similar tax, assessment or governmental charge;
(e) any tax, assessment, or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Notesuch Note or Coupon;
(vf) any tax, assessment or other governmental charge which is payable by a holder that is not the beneficial owner of such Note or Coupon, or a portion of either, or that is a foreign partnership, but only to the extent that a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficial owner or member received directly its beneficial or distributive share of the payment;
(g) any tax, assessment or other governmental charge required to be withheld by any paying agent Paying Agent from any payment of principal of or interest on this any Note or Coupon, if such payment can be made without such withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such DirectivePaying Agent; or
(ixh) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vi), (viif) and (viii) in this Section 4(ag); nor shall . For purposes of the foregoing, the holding of or the receipt of any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor payment with respect to such fiduciary a Note shall not constitute a connection between the holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or a member of person having a power over, such holder if such holder is an estate, a trust, a partnership or a beneficial owner thereof, would not have been entitled to corporation) and the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderUnited States.
Appears in 2 contracts
Sources: Fiscal Agency Agreement (Kellogg Co), Fiscal Agency Agreement (Kellogg Co)
Payment of Additional Amounts. The All payments in respect of the Notes shall be made by or on behalf of the Company shall pay to the Holder (includingwithout withholding or deduction for, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of of, any present or future taxtaxes, assessment duties, assessments or other governmental charge charges of whatever nature, imposed upon such Holder or levied by the United States of America or any taxing authority thereof or therein, unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company shall pay to a Holder who is not a United States Person such additional amounts (the “Additional Amounts”) as are necessary in order that the net payment by the Company or a Paying Agent of the principal of, and Make-Whole Amount, if any, and interest on, the Notes to such Holder, after such withholding or deduction will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary Holder, being considered as:
(A) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States or having or having had a qualified business unit which has the Dollar as its functional currency;
(B) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder) or being considered as having such relationship, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(C) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates foreign personal holding company that has accumulated earnings to avoid United States federal income tax;
(ivD) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Company as defined in Section 871(h)(3)(B871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and or any successor provision; or
(E) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the regulations ordinary course of its trade or business;
(ii) to any Holder that may be promulgated thereunder) is not the sole beneficial owner of the Company Notes, or (B) a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the Company within the meaning fiduciary, a beneficial owner or member of the Codepartnership or limited liability company would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(viiiiii) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment;
(v) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(vi) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(vii) to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(viii) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such Directivepayment can be made without such withholding by at least one other Paying Agent;
(ix) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(x) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code and related Treasury regulations and pronouncements (the Foreign Account Tax Compliance Act (“FATCA”)) or any successor provisions and any regulations or official law, agreement or interpretations thereof or any regulations implementing an intergovernmental approach thereto; or
(ixxi) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (viii) x). The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 4(a2.1(f); nor shall , the Company will not be required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary tax, duty, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary governmental charge of whatever nature imposed by any government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Supplemental Indenture (Health Care Reit Inc /De/), Supplemental Indenture (Health Care Reit Inc /De/)
Payment of Additional Amounts. The Company shall pay shall, in the case of a payment to a Holder who is not a United States person and subject to the Holder (includingexceptions and limitations set out below, for purposes of this Section 4pay as additional interest on the Notes, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be are necessary so in order that every the net payment by the Company or an Issuing and Paying Agent of the principal of and interest on this Note to such Holderthe Notes or the Coupons, if any, appertaining thereto, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any taxing authority thereof or thereinimposed with respect to the payment, will not be less than the amount provided in this Note the relevant series of Notes or any Coupons to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) any to a tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld by reason of the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been present or engaged in trade or business in the United States includingor having or having had a permanent establishment in the United States;
(b) having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident;
(c) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americapersonal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax; or
(d) being or having been a "ten-percent shareholder" of the obligor under the Notes as defined in section 871(h)(3) of the United States Internal Revenue Code or any successor provisions, or being a bank receiving interest described in section 881(c)(3)(A) of the United States Internal Revenue Code or any successor provisions;
(iv2) to a holder that is not the sole beneficial owner of the Notes or any Coupon appertaining thereto, or a portion of either, or that is a fiduciary or partnership, but only to the extent that a beneficial owner or a beneficiary or settlor with respect to the fiduciary, or a member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficial owner, beneficiary, settlor, or member received directly its beneficial or distributive share of the payment;
(3) to a tax, assessment or other governmental charge which that is payable otherwise than by withholding from payment of principal of imposed or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment reason of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation identification or other information reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America the holder or beneficial owner of the Holder of this Notesuch Notes or any Coupon appertaining thereto, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii4) to a tax, assessment or governmental charge that is imposed otherwise than by withholding by the Company or an Issuing and Paying Agent from the payment;
(5) to a tax, assessment or governmental charge that is imposed or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(6) to an estate, inheritance, gift, sales, excise, State, local, transfer, wealth or personal property tax or any similar tax, assessment or governmental charge;
(7) to any tax, assessment or other governmental charge required to be withheld by any Issuing and Paying Agent from any payment of principal of or interest on any Notes or any Coupon appertaining thereto, if such payment can be made without such withholding by any other Issuing and Paying Agent;
(8) to any tax, assessment or governmental charge that is imposed on interest received or levied by reason of the presentation (A) a 10% shareholder (as defined where presentation is required in Section 871(h)(3)(Border to receive payment) of the United States Internal Revenue Code of 1986, as amended (Notes for payment on a date more than 30 days after the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect date on which such payment is first made available to the Company within the meaning of the Code;
(viii) any withholding holder or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3beneficial owner, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership except to the extent that a beneficiary the holder or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, thereof would not have been entitled to the payment of an additional amounts hereunder had the Notes been presented for payment on any date during such Additional Amounts had such beneficiary30-day period;
(9) to any tax, settlor, member assessment or beneficial owner governmental charge that would not have been imposed or withheld but for the Holder.treatment of the interest paid by the obligor as contingent interest described in section 871(h)
Appears in 2 contracts
Sources: Senior Indenture (Cit Group Inc), Subordinated Indenture (Cit Group Inc)
Payment of Additional Amounts. (a) The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) pay such additional amounts as may be necessary so will result in the receipt by each beneficial owner of a Note that every net payment is not a United States person (as defined in Section 4.01(c) below) of principal of and interest on this Note to such Holderamounts, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof in the United States (including any withholding or therein, will not be less than deduction with respect to the amount provided in this Note to be then due and payable (payment of such additional amounts, the “Additional Amounts”)) as would have been received had no such withholding or deduction been required; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder or other equity owner of, or possessor of a power over, the Holder or beneficial owner if the Holder or beneficial owner is an estate, trust, partnership, corporation or other entity, being considered as:
(a) being or having been engaged in a trade or business in the United States or having been present in the United States or having had a permanent establishment in the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment thereon or the enforcement of any rights thereunder), including being or having been a citizen or resident of the United States;
(c) being or having been a personal holding company, a passive foreign investment company, a controlled foreign corporation or a foreign tax exempt organization for United States federal income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of PerkinElmer, Inc. as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision; or
(e) being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of such additional amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or any present other person to comply with certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof such Holder or other person, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge;
(B4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding or deducting from payments on the presentation of this Note Notes;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for payment on a date change in law, treaty, regulation or administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(ii6) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii7) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or premium, if any, or interest on this Note any note, if such payment can be made without such withholding by any at least one other paying agent;
(vi) 8) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this Noteany note, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition to relief or exemption from such taxdate on which payment thereof is duly provided for, assessment or other governmental chargewhichever occurs later;
(vii9) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code Code, any intergovernmental agreement or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix10) in the case of any combination of items (i1), (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (8) and (9).
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 4.01, the Company will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Section 4.01 and under Section 3.02, the term “United States” means the United States of America (including the states of the United States and the District of Columbia and any political subdivision thereof) and (viii) in this Section 4(a); nor shall the term “United States person” means any Additional Amounts be paid to any Holder individual who is a fiduciary citizen or partnership to resident of the extent that United States for U.S. federal income tax purposes, a beneficiary or settlor with respect to such fiduciary or a member of such corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a beneficial owner thereofpartnership that is not treated as a United States person under any applicable Treasury regulations), would not have been entitled or any estate or trust the income of which is subject to the payment United States federal income taxation regardless of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderits source.
Appears in 2 contracts
Sources: Agency Agreement (Perkinelmer Inc), Agency Agreement (Perkinelmer Inc)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the each beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, America or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed on foreign personal holding company income or by reason of such ▇▇▇▇▇▇Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, America or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary fiduciary, or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 2 contracts
Sources: Note (Wal Mart Stores Inc), Note (Wal Mart Stores Inc)
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been holding of a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Note),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this Note, the Note if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations Issuer has given the Holders at least 30 days’ notice that may Holders shall be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect required to the Company within the meaning of the Code;provide such information and identification,
(viiiiv) any Taxes payable otherwise than by deduction or withholding or deduction that is from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual and is required to be made pursuant to that European Union Council Directive relating 2003/48/EC (as amended from time to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, time) or any law implementing or complying with, or introduced in order to conform to, such Directive; ,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid payment on the Note to any a Holder who that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) The Issuer will ensure that it maintains a paying agent, in a European Union Member State, that will not be obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(h) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 2 contracts
Sources: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The If any deduction or withholding for any present or future taxes, assessments or other governmental charges of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company or a successor corporation under the Notes, the Company or a successor corporation shall pay to the each Holder (includingof Notes as additional interest, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such Holderholder of such Notes who, after deduction or withholding for or on account of with respect to any present or future such tax, assessment or other governmental charge imposed upon charge, is not resident in, or a citizen of, such Holder by the United States of America jurisdiction, after such deduction or any taxing authority thereof or thereinwithholding, will shall be not be less than the amount provided specified in this Note such Notes to be then due and payable (which such amounts, the “Additional Amounts”)Holder is entitled; provided, however, that the Company or a successor corporation shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any Any tax, assessment or other governmental charge that would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bii) the presentation of this a Note (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later, or (iii) the presentation of a Note for payment in Bermuda or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere;
(iib) any Any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiic) any Any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which that is payable otherwise than by withholding from payment of principal of of, premium, if any, or any interest on this Notethe Notes;
(vd) any Any tax, assessment or other governmental charge required to be that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a request of the Company addressed to the Holder (i) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make and deliver any paying agent from any payment declaration or other similar claim (other than a claim for refund of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any a tax, assessment or other governmental charge which would not have been withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed but for the failure to comply with certificationby a statute, informationtreaty, documentation regulation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America administrative practice of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixe) any Any combination of items (ia), (iib), (iii), (iv), (v), (vi), (viic) and (viiid) in this Section 4(a)above; nor shall any Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of (x) Bermuda or any political subdivision or governmental authority thereof or therein having the power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of such Note. The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes, if any, by the Company. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agent, as applicable, upon request therefor. All references in the Indenture to principal of, premium, if any, and interest on the Notes shall include any Additional Amounts payable by the Company in respect of such principal, such premium, if any, and such interest.
Appears in 2 contracts
Sources: Indenture (Global Crossing LTD), Indenture (Global Crossing Holdings LTD)
Payment of Additional Amounts. (a) The Company shall pay Issuer will, subject to the Holder exceptions and limitations set forth below, pay such additional amounts (including, for purposes “Additional Amounts”) as will result in the receipt by each beneficial owner of this Section 4, the beneficial owner) of this a Note who that is not a Non-U.S. Person United States person (as defined in clause (c) below) of such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderamounts, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof in the United States (including any withholding or therein, will not be less than deduction with respect to the amount provided in this Note to be then due and payable (payment of such additional amounts, the “Additional Amounts”)) as would have been received had no such withholding or deduction been required; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been is imposed but by reason of the Holder (or the beneficial owner for (A) the existence of any present or former connection between whose benefit such Holder▇▇▇▇▇▇ holds such Note), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder or other equity owner of, or possessor of a power over, such Holder, the Holder or beneficial owner if such the Holder or beneficial owner is an estate, trust, partnership partnership, corporation or corporationother entity, and being considered as:
(a) being or having been engaged in a trade or business in the United States includingor having been present in the United States or having had a permanent establishment in the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment thereon or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the foreign tax exempt organization for United States of America, federal income tax purposes or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(ivd) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Issuer as defined in Section 871(h)(3)(B871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and or any successor provision; or
(e) being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the regulations ordinary course of its trade or business;
(2) to any Holder that may be promulgated thereunder) is not the sole beneficial owner of the Company Notes, or (B) a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3Holder, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereof, or member of the partnership or limited liability company would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the Holderfailure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of such Holder or other person, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding or deducting from payments on the Notes;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, treaty, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(7) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or premium, if any, or interest on any note, if such payment can be made without such withholding by at least one other Paying Agent;
(8) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(9) to any tax, assessment or other governmental charge imposed under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, any intergovernmental agreement or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(10) in the case of any combination of clauses (1), (2), (3), (4), (5), (6), (7), (8) and (9).
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 2.07, the Issuer will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Section 2.07, the term “United States” means the United States of America (including the states of the United States and the District of Columbia and any political subdivision thereof) and the term “United States person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person under any applicable Treasury regulations), or any estate or trust the income of which is subject to United States federal income taxation regardless of its source.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Emerson Electric Co), Third Supplemental Indenture (Emerson Electric Co)
Payment of Additional Amounts. The (a) All payments made by the Company shall pay under or with respect to the Holder Notes will be made free and clear of, and without withholding or deduction for or on account of, any Tax, unless the withholding or deduction of such Tax is then required by law. If any deduction or withholding by any applicable withholding agent for or on account of any Taxes imposed or levied by or on behalf of the United States or a taxing authority of or in the United States (includinga “Tax Jurisdiction”) will at any time be required to be made in respect of any payments made by the Company under or with respect to the Notes, for purposes including payments of this Section 4principal, redemption price, purchase price, interest or premium, then the Company will pay such additional amounts (the “Additional Amounts”) as may be necessary in order that the net amounts received in respect of such payments by each beneficial owner) owner of this Note who the Notes that is not a Non-U.S. Person (as defined below) after such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holderwithholding, after deduction or withholding for imposition (including any such withholding, deduction or on account imposition in respect of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)) will equal the respective amounts that would have been received in respect of such payments in the absence of such withholding or deduction; provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to:
(i1) any taxTaxes, assessment or other governmental charge that to the extent such Taxes would not have been imposed but for the Holder of a Note (Aor the beneficial owner for whose benefit such Holder holds such Note) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) having a current or former connection with the United States includingrelevant Tax Jurisdiction (other than a connection arising solely from the ownership or disposition of such Note, without limitationthe enforcement of rights under such Note), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America such Tax Jurisdiction, being or treated as having engaged in a resident thereof trade or business in such Tax Jurisdiction or having or having had a permanent establishment in such Tax Jurisdiction; or
(b) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for U.S. federal income tax purposes or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States U.S. federal income tax;
(iv2) any taxHolder that is not the sole beneficial owner of the Notes, assessment or other governmental charge which a portion of the Notes, or that is payable otherwise than by withholding from a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of principal Additional Amounts had the beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of or interest on this Notethe payment;
(v3) any tax, assessment or other governmental charge Taxes required to be withheld by any paying agent from any payment of principal of or interest on this Note any Note, if such payment can be made without such withholding by any at least one other paying agent;
(vi4) any taxTaxes, assessment to the extent such Taxes were imposed as a result of the presentation of a Note for payment more than 30 days after the relevant payment is first made available for payment to the Holder (except to the extent that the Holder or other governmental charge which beneficial owner would not otherwise have been entitled to Additional Amounts had the Note been presented on the last day of such 30 day period);
(5) any Taxes that are payable otherwise than by deduction or withholding from a payment on or with respect to the Notes;
(6) any U.S. federal withholding tax imposed but as a result of the beneficial owner:
(a) being a controlled foreign corporation for U.S. federal income tax purposes related to the Company;
(b) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Code; or
(c) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(7) any estate, inheritance, gift, sales, transfer, excise, wealth, capital gains, personal property or similar Taxes;
(8) any Taxes, to the extent such Taxes are imposed or withheld by reason of the failure of the Holder or beneficial owner of Notes to comply with any certification, informationidentification, documentation information or other reporting requirements concerning the nationalityrequirements, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is whether required by statute statute, treaty, regulation or by regulation administrative practice of the United States Treasury Department a Tax Jurisdiction, as a precondition to relief exemption from, or exemption from reduction in the rate of deduction or withholding of, Taxes imposed by the Tax Jurisdiction (including, without limitation, a certification that the Holder or beneficial owner is not resident in the Tax Jurisdiction), but in each case, only to the extent the Holder or beneficial owner is legally eligible to provide such tax, assessment certification or other governmental chargedocumentation;
(vii9) any taxTaxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the Code as of the date of the Indenture (or any amended or successor version that is substantively comparable), assessment any regulations promulgated thereunder or any other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or date of Indenture (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law amended or successor version described above) or any intergovernmental agreements (and any related law, regulation or official administrative guidance) implementing or complying with, or introduced in order to conform to, such Directivethe foregoing; or
(ix10) any combination of items (i), 1) through (ii), 9) above.
(iii), (iv), (v), (vi), (viib) and (viii) Except as specifically provided for in this Section 4(a); nor shall 4.06, the Company will not be required to make any payment for any Tax.
(c) If the Company becomes aware that it will be obligated to pay Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary any payment under or a member with respect to the Notes, the Company will deliver to the Trustee and Paying Agent promptly prior to the date of such partnership or a beneficial owner thereof, would not have been that payment an Officers’ Certificate stating the fact that Additional Amounts will be payable and the amount estimated to be so payable. The Officers’ Certificate must also set forth any other information reasonably necessary to enable the Paying Agent to pay Additional Amounts to Holders on the relevant payment date. The Trustee and Paying Agent shall be entitled to rely solely on such Officers’ Certificate as conclusive proof that such payments are necessary.
(d) The Company, if it is the applicable withholding agent, will make all withholdings and deductions required by law and will remit the full amount deducted or withheld to the relevant Tax authority in accordance with applicable law. The Company will use its reasonable efforts to obtain Tax receipts from each Tax authority evidencing the payment of any Taxes so deducted or withheld. The Company will furnish to the Trustee upon reasonable written request, within a reasonable time after the date the payment of any Taxes so deducted or withheld is made, certified copies of Tax receipts evidencing payment by the Company or if, notwithstanding such Additional Amounts had entity’s efforts to obtain receipts, receipts are not obtained, other reasonable evidence of payments by such beneficiaryentity.
(e) The above obligations will survive any termination, settlordefeasance or discharge of the Indenture, member any transfer by a holder or beneficial owner been of its Notes, and will apply, mutatis mutandis, to any successor Person to the HolderCompany.
(f) As used in this Section 4.06 and under Section 3.03 hereof,
Appears in 2 contracts
Sources: Supplemental Indenture (Equinix Inc), Fifteenth Supplemental Indenture (Equinix Inc)
Payment of Additional Amounts. The All payments in respect of the Notes will be made by or on behalf of the Company shall pay to the Holder (includingwithout withholding or deduction for, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of of, any present or future taxtaxes, assessment duties, assessments or other governmental charge charges of whatever nature, imposed upon such Holder or levied by the United States of America or any taxing authority thereof or therein, unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company will pay to a holder who is not a United States person such additional amounts on the Notes as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, such Notes to a holder, after such withholding or deduction, will not be less than the amount provided in this Note such Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company shall foregoing obligation to pay additional amounts will not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as;
(A) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(B) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of such Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States;
(C) being a controlled foreign corporation related to the Company directly, indirectly or constructively through stock ownership for United States federal income tax purposes;
(D) being an owner of America a 10% or treated greater interest in voting stock of the Company within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the ‘‘Code’’) or any successor provision; or
(E) being a resident thereof or being or having been engaged bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business business;
(2) to any holder that is not the sole beneficial owner of such Notes, or present in a portion of such Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly from the Company its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the holder or beneficial owner of the applicable Note, to comply with any applicable certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the United States or (B) any taxing authority therein or by an applicable income tax treaty to which the presentation of this Note for payment on United States is a date more than 30 days after the later of (x) the date on which party as a precondition to exemption from such payment becomes due and payable and (y) the date on which payment thereof is duly provided fortax, assessment or other governmental charge;
(ii4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding from the payment;
(5) to any estate, inheritance, gift, sales, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii6) to any taxwithholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any other Directive amending, assessment supplementing or other governmental charge imposed by reason of replacing such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of AmericaDirective, or as a corporation which accumulates earnings any law implementing or complying with, or introduced in order to avoid United States federal income taxconform to, such Directive or Directives;
(iv7) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any such Note, if such payment can be made without such withholding by any at least one other paying agentagent in a member state of the European Union;
(vi) 8) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning presentation by the nationality, residence, identity or connections with the United States holder of America of the Holder of this any such Note, if where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder or beneficial owner thereof would have been entitled to additional amounts had the Note been presented for payment on the last day of such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge30 day period;
(vii9) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to Sections 1471 through 1474 of the taxation of savings adopted on June 3, 2003 by the European Union’s Economic Code and Financial Affairs Council, related Treasury regulations and pronouncements or any law successor provisions thereto (that are substantively comparable and not materially more onerous to comply with) and any regulations or official law, agreement or interpretations thereof in any jurisdiction implementing or complying with, or introduced in order to conform to, such Directivean intergovernmental approach thereto; or
(ix10) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii1)-(9) and (viii) in of this Section 4(a); nor shall 3.10. Except as specifically provided by this Section 3.10, the Company will not be required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary tax, duty, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary governmental charge of whatever nature imposed by any government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Ball Corp), Second Supplemental Indenture (Ball Corp)
Payment of Additional Amounts. The Company shall pay shall, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such pay additional amounts as may be are necessary so in order that every the net payment by the Company of principal of and interest on this Note the Securities to such Holdera Holder who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other similar governmental charge (each, a “Tax”) imposed upon such Holder by the United States of America or any taxing authority thereof or thereinStates, will not be less than the amount provided which would have been received by such Holder in this Note to be then due and payable (respect of such amounts, payments in the “Additional Amounts”)absence of such withholding or deduction; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment Tax to the extent such Tax is imposed by reason of the Holder (or other governmental charge that would not have been imposed but the beneficial owner for (A) the existence of any present or former connection between whose benefit such HolderHolder holds such Security), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, memberpartner, member or shareholder of the Holder if the Holder is an estate, nominee, trust, partnership, limited liability company or possessorcorporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
(b) having or having had any other connection with the United States (other than a connection arising solely as a result of the ownership of the Securities, the receipt of any payment or the enforcement of any rights hereunder), including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for United States federal income tax purposes or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(ivd) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (Company as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and ) or any amended or successor provision; or
(e) being or having been a bank receiving payments on an extension of credit made pursuant to an loan agreement entered into in the regulations ordinary course of its trade or business;
(2) to any Holder that may be promulgated thereunder) is not the sole beneficial owner of the Company Securities, or (B) a controlled foreign corporation portion of the Securities, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Company within Holder, a beneficiary or settlor with respect to the meaning fiduciary, or a beneficial owner or member of the Codepartnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(viii3) to any Tax to the extent such Tax would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or other information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Securities, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or reduction of, such Tax;
(4) to any Tax that is imposed otherwise than by withholding by the Company or a paying agent from the payment;
(5) to any estate, inheritance, gift, sales, value added, excise, transfer, wealth, gains, personal property Tax or similar Tax;
(6) to any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that any European Union Directive relating to directive on the taxation of savings adopted on June 3savings, 2003 by or any similar directive of any jurisdiction outside of the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform toto any such directive;
(7) to any Tax required to be withheld by any paying agent from any payment of principal of or interest on any Security, if such Directivepayment can be made without such withholding by at least one other paying agent;
(8) to any Tax to the extent such Tax would not have been imposed but for the presentation by the Holder or beneficial owner of any Security, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(9) to any Tax to the extent such Tax is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Securities in the ordinary course of its lending business or (ii) that is neither (A) buying the Securities for investment purposes only nor (B) buying the Securities for resale to a third-party that either is not a bank or holding the Securities for investment purposes only;
(10) to any Tax imposed under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or other official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Internal Revenue Code;
(11) to any backup withholding Tax imposed pursuant to Section 3406 of the Code (or any amended or successor provision);
(12) to any Tax imposed pursuant to Section 871(h)(6) or 881(c)(6) of the Code (or any amended or successor provisions); or
(ix13) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in the clauses above. Except as specifically provided under this Section 4(a); nor shall 6, the Company is not required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary Tax imposed by any government or partnership to the extent that a beneficiary any political subdivision or settlor with respect to such fiduciary taxing authority of or a member of such partnership in any government or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Payment of Additional Amounts. The Company shall pay or, in the case of the Guarantees, the Guarantor, will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company or a Paying Agent of the principal of and interest on this Note each of the Notes to such a Holder, after withholding or deduction or withholding for or on account of solely with respect to any present or future tax, assessment or other governmental charge imposed upon such Holder by Luxembourg, the United States of America or any taxing authority other jurisdiction in which the Company or the Guarantor or, in each case, any successor thereof (including a continuing Person formed by a consolidation with the Company or Guarantor, into which the Company or Guarantor is merged, or that acquires or leases all or substantially all of the property and assets of the Company or the Guarantor) may be organized, as applicable, or any political subdivision thereof or thereintherein having the power to tax (a “Taxing Jurisdiction”), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company shall foregoing obligation to pay additional amounts will not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder (A) or the existence of any present or former connection between beneficial owner for whose benefit such HolderHolder holds such Note), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, membermember or shareholder of the Holder, shareholder or possessora person holding a power over an estate or trust administered by a fiduciary Holder, being treated as:
(a) being or having been present in, or engaged in a trade or business in, the relevant Taxing Jurisdiction, or having or having had a permanent establishment in such Taxing Jurisdiction;
(b) having a current or former connection with the relevant Taxing Jurisdiction (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the Indenture), including being or having been a citizen or resident of the United States of America such Taxing Jurisdiction or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forresident thereof;
(iic) any estatebeing or having been a personal holding company, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for United States federal income tax purposes, a foreign tax exempt organization, or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(ivd) being or having been a “10-percent shareholder”, as defined in section 871(h)(3) of the Code, or any successor provision, of the Company or the Guarantor; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, within the meaning of section 881(c)(3) of the Code or any successor provision;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of the Holder or any other person to comply with certification, information, documentation identification or other information reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America relevant Taxing Jurisdiction of the Holder or beneficial owner of this Notethe Notes, if such compliance is required by statute or statute, by regulation of the United States Treasury Department relevant Taxing Jurisdiction or any taxing authority therein or by an applicable income tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment;
(5) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(7) to any tax assessment or other governmental charge required to be withheld or deducted that is imposed on a payment pursuant to sections 1471 through 1474 of the Code (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with), any Treasury Regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(8) any tax assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(9) any tax, assessment or other governmental charge that is imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) reason of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) failure of the Company beneficial owner to fulfill the statement requirements of section 871(h) or (Bsection 881(c) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii10) any withholding or deduction that is tax imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to section 871(h)(6) or section 881(c)(6) of the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, Code (or any law implementing amended or complying with, or introduced in order to conform to, such Directivesuccessor provisions); or
(ix11) in the case of any combination of items the above clauses (i), 1) through (ii), (iii), (iv), (v), (vi), (vii10) and (viii) in under this Section 4(a); nor shall 1.8. Except as specifically provided under this Section 1.8, the Company or the Guarantor will not be required to pay additional amounts in respect of any Additional Amounts be paid to any Holder who is a fiduciary tax, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderother governmental charge.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Becton Dickinson & Co), First Supplemental Indenture (Becton Dickinson & Co)
Payment of Additional Amounts. The All payments in respect of the Notes will be made by or on behalf of the Company shall pay to the Holder (includingwithout withholding or deduction for, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of of, any present or future taxtaxes, assessment duties, assessments or other governmental charge charges of whatever nature, imposed upon such Holder or levied by the United States of America or any taxing authority thereof or therein, or by any other jurisdiction from or through which payment is made, unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company will pay to a holder who is not a United States person such additional amounts on the Notes as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, such Notes to a holder, after such withholding or deduction, will not be less than the amount provided in this Note such Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company shall foregoing obligation to pay additional amounts will not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as;
(A) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(B) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of such Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forStates;
(iiC) any estatebeing a controlled foreign corporation related to the Company directly, inheritance, gift, sales, transfer, excise, personal property indirectly or similar tax, assessment or other governmental chargeconstructively through stock ownership for United States federal income tax purposes;
(iiiD) being an owner of a 10% or greater interest in voting stock of the Company within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the ‘‘Code’’) or any successor provision; or
(E) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(2) to any holder that is not the sole beneficial owner of such Notes, or a portion of such Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly from the Company its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of the holder or beneficial owner of the applicable Note, to comply with any applicable certification, information, documentation identification or other information reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America the holder or beneficial owner of the Holder of this Notesuch Notes, if such compliance is required by statute or statute, by regulation of the United States Treasury Department or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii4) to any tax, assessment or other governmental charge that is imposed on interest received otherwise than by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of withholding from the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Codepayment;
(viii5) to any estate, inheritance, gift, sales, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the holder of any such Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder or beneficial owner thereof would have been entitled to additional amounts had the Note been presented for payment on the last day of such 30 day period;
(7) to any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to Sections 1471 through 1474 of the taxation of savings adopted on June 3, 2003 by the European Union’s Economic Code and Financial Affairs Council, related Treasury regulations and pronouncements or any law successor provisions thereto (that are substantively comparable and not materially more onerous to comply with) and any regulations or official law, agreement or interpretations thereof in any jurisdiction implementing or complying with, or introduced in order to conform to, such Directivean intergovernmental approach thereto; or
(ix) 8) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii1)-(7) and (viii) in of this Section 4(a); nor shall 3.10. Except as specifically provided by this Section 3.10, the Company will not be required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary tax, duty, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary governmental charge of whatever nature imposed by any government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Eleventh Supplemental Indenture (BALL Corp), Twelfth Supplemental Indenture (BALL Corp)
Payment of Additional Amounts. (a) The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company of the principal of and interest on this Note the Notes to such Holdera Holder of the Notes who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
a. being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
b. having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment or the enforcement of any rights hereunder), including being or having been a citizen or resident of the United States;
c. being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
d. being or having been a “10-percent shareholder” of the Guarantor as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision; or
e. being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or any present other person to comply with certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof the Holder or beneficial owner of the Notes, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by us or a paying agent from the payment;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or (B) the presentation of this Note for payment on a date administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(ii6) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii7) to any tax, assessment withholding or other governmental charge deduction that is imposed by reason of such ▇▇▇▇▇▇’s past on a payment to an individual and that is required to be made pursuant to any law implementing or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of Americacomplying with, or as a corporation which accumulates earnings introduced in order to avoid United States federal income taxconform to, any European Union Directive on the taxation of savings;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) 8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Notes, if such payment can be made without such withholding by any at least one other paying agent;
(vi9) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this Noteany Notes, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition date on which payment thereof is duly provided for, whichever occurs later;
(10) to relief or exemption from such any tax, assessment or other governmental chargecharge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes only;
(vii11) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Internal Revenue Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) such sections of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Internal Revenue Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix12) in the case of any combination of items (i1), (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (8), (9), (10) and (viii11) above.
(b) The Notes are subject in this Section 4(a); nor shall any Additional Amounts be paid all cases to any Holder tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Article, we will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Article 5 and under Section 4.03, the term “United States” means the United States of America, the states of the United States, and the District of Columbia, and the term “United States person” means any individual who is a fiduciary citizen or partnership to resident of the extent that United States for U.S. federal income tax purposes, a beneficiary or settlor with respect to such fiduciary or a member of such corporation, partnership or a beneficial owner thereofother entity created or organized in or under the laws of the United States, would not have been entitled any state of the United States or the District of Columbia, or any estate or trust the income of which is subject to the payment United States federal income taxation regardless of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderits source.
Appears in 2 contracts
Sources: Eighth Supplemental Indenture (Discovery Communications, Inc.), Supplemental Indenture (Discovery Communications, Inc.)
Payment of Additional Amounts. The Company (a) All payments made by the Guarantor of Guaranteed Securities Obligations in respect of the Securities shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal free and clear of and interest on this Note to such Holder, after without withholding or deduction or withholding for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed upon or levied by or on behalf of the government of the United Kingdom, any territory of the United Kingdom or any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the extent such Holder Taxes are required to be withheld or deducted by law or by the United States interpretation or administration thereof. If the Guarantor is so required to withhold or deduct any amount for or on account of America Taxes from any payment of Guaranteed Securities Obligations made in respect of the Securities, the Guarantor shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts), after such withholding or any taxing authority thereof or thereindeduction, will shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to Taxes:
(i1) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, Holder or beneficial owner of the Securities (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderHolder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United States Kingdom or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or present in the United States of America, having or (B) the presentation of this Note for payment on having had a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forpermanent establishment therein;
(ii2) any that are estate, inheritance, gift, sales, transfer, excisepersonal property, personal property wealth or similar taxtaxes, assessment duties, assessments or other governmental chargecharges;
(iii3) any tax, assessment or payable other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments of principal of and premium, if any, or interest interest, if any, on this Notethe Securities;
(v4) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirements concerning requirement to the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if extent
(i) such compliance is required by statute applicable law or by regulation of the United States Treasury Department administrative practice or an applicable treaty as a precondition to relief exemption from, or exemption from reduction in, the rate of deduction or withholding of such taxTaxes; and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, assessment the Company or other governmental chargethe Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(vii5) any taxthat would not have been imposed but for the presentation of a Security (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Codewhichever occurred later;
(viii6) any withholding or deduction that is are imposed on a payment to an individual and is are required to be made pursuant to that any European Union Directive relating to on the taxation of savings adopted income relating to the proposal for a directive on June 3, 2003 the taxation of savings income published by the European Union’s Economic and Financial Affairs CouncilECOFIN Council on December 13, 2001 or otherwise implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directivea directive;
(7) that would not have been imposed if presentation for payment of the relevant Securities had been made to a paying agent other than the paying agent to which the presentation was made; or
(ix) 8) any combination of items the foregoing clauses (i), 1) through (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a7); nor shall any Additional Amounts be paid with respect to Guaranteed Securities Obligations with respect to any Securities to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of the Security.
(b) The obligation of the Guarantor to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.
(c) If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Guarantor substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of the United Kingdom, such successor Person will pay Additional Amounts on the same basis set forth in this Section 15.04, except that references to the “United Kingdom” will be treated as references to both the United Kingdom and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).
Appears in 2 contracts
Sources: Indenture (Aon Corp), Indenture (Aon Corp)
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident holding of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Notes),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this the Note, if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) [Reserved],
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation Taxes with respect to such Note presented for payment more than 30 days after the Company within date on which the meaning payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of the Code;such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any withholding or deduction payment on the Note to a Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(c)will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(c)does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax- exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 2 contracts
Sources: Indenture (Cemex Sab De Cv), Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The Company All payments of Principal and interest in respect of the Securities shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal free and clear of and interest on this Note to such Holder, after without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed upon such Holder or levied by or on behalf of (i) the government of the United Kingdom or of any territory of the United Kingdom or by any authority or agency therein or thereof having the power to tax or (ii) the government of the United States or of America any state or territory of the United States or by any taxing authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the extent such Taxes are required to be withheld or thereindeducted by law or by the interpretation or administration thereof. If either the Company or the Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities, will the Company or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to Taxes:
(ia) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, Holder or beneficial owner of the Securities (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderHolder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United Kingdom or the United States or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or present in having or having had a permanent establishment therein;
(b) that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;
(c) that are payable other than by withholding from payments of Principal of or interest on the United States Securities;
(d) that would not have been imposed but for the failure of Americathe applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes;
(Be) that would not have been imposed but for the presentation of this Note a Security (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is was duly provided for, whichever occurred later;
(iif) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is are imposed on a payment to an individual and is are required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such Directive; or;
(ixg) that would not have been imposed if presentation for payment of the relevant Securities had been made to a Paying Agent other than the Paying Agent to which the presentation was made;
(h) that are imposed solely by reason of the Holder or beneficial owner owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Company’s stock entitled to vote;
(i) that would not have been imposed but for a failure by the Holder or beneficial owner (or any financial institution through which the Holder or beneficial owner holds any Security through which payment on the Security is made) to comply with any certification, information, identification, documentation or other reporting requirements (including entering into and complying with an agreement with the U.S. Internal Revenue Service or any other governmental authority) imposed pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code as in effect on the date of issuance of the Notes or any successor or amended version of such provisions, any agreement entered into pursuant to Section 1471(b) of the U.S. Internal Revenue Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the U.S. Internal Revenue Code (or any law implementing such an intergovernmental agreement);”.
(j) any combination of items the foregoing clauses (a) through (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid with respect to any payment of the Principal of or interest on any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of the Security. The Company shall maintain, in respect of Securities of each series outstanding, at least one Paying Agent located outside the United Kingdom. In the event that a Paying Agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a Paying Agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to any law implementing European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such Directive. The obligation of the Company or the Guarantor, as the case may be, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all amounts in respect of the Securities.”
Appears in 2 contracts
Sources: Supplemental Indenture (Glaxosmithkline Capital PLC), Supplemental Indenture (Glaxosmithkline Capital Inc)
Payment of Additional Amounts. The Company shall pay will, subject to the Holder exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts (including“Additional Amounts”) as are necessary in order that the net payment by the Company, for purposes any Guarantor or the Paying Agent of this Section 4, any payments under the beneficial owner) of this Notes or any Note Guarantee to a holder who is not a Non-U.S. Person United States person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (“Tax”) imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment Tax that is imposed by reason of the holder (or other governmental charge that would not have been imposed but the beneficial owner for (A) whose benefit such holder holds the existence of any present or former connection between such HolderNotes), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(1) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(2) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(3) being or having been engaged a personal holding company, a passive foreign investment company or a controlled foreign corporation for U.S. federal income tax purposes or a corporation that has accumulated earnings to avoid U.S. federal income tax;
(4) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Code;
(5) being a controlled foreign corporation that is related to the Company within the meaning of Section 864(d)(4) of the Code; or
(6) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business business;
(b) to any holder that is not the sole beneficial owner of the Notes, or present in a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the holder, a beneficiary or settlor with respect to the fiduciary or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(c) to any Tax that would not have been imposed but for the failure of the holder or the beneficial owner of the Notes to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such Tax (including the requirement to provide Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-9 or any subsequent versions thereof or successor thereto, and any documentation requirement under an applicable income tax treaty), but only to the extent such holder or beneficial owner is legally eligible to do so;
(d) to any Tax that is imposed otherwise than by withholding from the payment;
(e) any U.S. federal backup withholding under Section 3406 of the Code, or any similar provision of state or local law;
(Bf) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property or similar Tax;
(g) to any Tax required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by at least one other Paying Agent;
(h) to any Tax that would not have been imposed but for the presentation by the Holder of this Note any Note, where presentation is required, for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iii) to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge Tax imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America under Sections 1471 through 1474 of the Holder of this NoteCode (or any amended or successor provisions), if such compliance is required by statute any current or by regulation of the United States Treasury Department as a precondition future regulations or official interpretations thereof, any agreement entered into pursuant to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code of 1986Code, as amended (the “Code”)or any fiscal or regulatory legislation, and the regulations that may be promulgated thereunder) of the Company rules or (B) a controlled foreign corporation with respect practices adopted pursuant to the Company within the meaning any intergovernmental agreement implementing such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixj) in the case of any combination of items (a) through (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 2 contracts
Sources: Indenture (Cogent Communications Holdings, Inc.), Indenture
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after the Notes will be made free and clear of and without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed upon by any Relevant Taxing Jurisdiction, unless the withholding of such Taxes is required by law or the official interpretation or administration thereof. The Issuer will, subject to the exceptions and limitations set forth below, pay such additional amounts as are necessary in order that the net payment of the principal of and interest on the Notes to a Holder by the who is not a United States person for United States federal income tax purposes, after deduction for any present or future Taxes of America or any taxing authority thereof or thereinRelevant Taxing Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment Taxes that are imposed or other governmental charge that would not have been imposed but for withheld solely by reason of the Holder or beneficial owner of the Notes (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder) being considered as:
(i) being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
(iii) being or having been a citizen foreign or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americadomestic personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder obligor under the Notes within the meaning of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunderor any successor provisions; or
(v) being or having been a bank receiving interest described in section 881(c)(3)(A) of the Company Code or any successor provisions;
(Bb) to any Holder that is not the sole beneficial owner of the Note, or a controlled foreign corporation portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the Company within the meaning fiduciary, a beneficial owner or member of the Codepartnership would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(viiic) to any Taxes that are imposed or withheld solely by reason of the failure to (i) comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction of the Holder or beneficial owner of such Note, if compliance is required by statute or by regulation of the Relevant Taxing Jurisdiction as a precondition to relief or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service (“IRS”) Form W-8 (with any required attachments)) or (ii) comply with any informational gathering and reporting requirements or to take any similar action (including entering into any agreement with the IRS), in each case, that are required to obtain the maximum available exemption from withholding by a Relevant Taxing Jurisdiction that is available to payments received by or on behalf of the Holder;
(d) to any Taxes that are imposed otherwise than by withholding from the payment;
(e) to any Taxes that are imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(f) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(g) to any Taxes required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other Paying Agent;
(h) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or beneficial owner thereof would have been entitled to additional amounts had the Notes been presented for payment on any date during such 30 day period;
(i) to any withholding or deduction that in respect of any tax, assessment or governmental charge where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other directive implementing the taxation conclusions of savings adopted on June 3the ECOFIN Council meeting of November 26-27, 2003 by the European Union’s Economic and Financial Affairs Council, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directivedirective;
(j) to any backup withholding or any Taxes imposed under Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code; or
(ixk) in the case of any combination of any items (ia) through (k). The Notes are subject in all cases to any tax, (ii), (iii), (iv), (v), (vi), (vii) and (viii) in fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided by this Section 4(a); nor 4.14, the Issuer and the Guarantors shall not be required to make any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor payment with respect to such fiduciary any tax, assessment or governmental charge imposed by any government or a member of such partnership political subdivision or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member taxing authority thereof or beneficial owner been the Holdertherein.
Appears in 2 contracts
Sources: Indenture (Digital Realty Trust, L.P.), Indenture (Digital Realty Trust, L.P.)
Payment of Additional Amounts. If specified pursuant to Section 301, the provisions of this Section 1011 shall be applicable to Securities of any series. The Company shall will, subject to the exceptions and limitations set forth below, pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note any Security or coupon who is a Non-U.S. Person (as defined below) United States Alien such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such HolderSecurity or coupon, after deduction or withholding by the Company or any of its Paying Agents for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided in this Note such Security or in such coupon to be then due and payable (such amountspayable. However, the “Additional Amounts”); provided, however, that the Company shall will not be required to make any payment of Additional Amounts additional amounts for or on account of:
(ia) any tax, assessment or other governmental charge that would not have been so imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, settler or beneficiary of, member or shareholder of, or possessor of a person holding a power over, such Holder, if such Holder is an estate, estate or trust, or a member or shareholder of such Holder, if such Holder is a partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder (or such fiduciary, settlorsettler, beneficiary, memberperson holding a power, shareholder member or possessor, shareholder) being or having been a citizen or citizen, resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in therein or having or having had a permanent establishment therein, or (ii) such Holder's present or former status as a personal holding company, foreign personal holding company, controlled foreign corporation or passive foreign investment company with respect to the United States of Americaor as a corporation that accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or (B) other governmental charge which would not have been so imposed but for the presentation by the Holder of this Note such Security or coupon for payment on a date more than 30 10 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iic) any estate, inheritance, gift, sales, transfer, excise, personal property tax or any similar tax, assessment or other governmental charge;
(iiid) any tax, assessment or other governmental charge imposed required to be withheld by reason any Paying Agent from any payment in respect of any Security or coupon, if such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxpayment can be made without such withholding by at least one other Paying Agent;
(ive) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments in respect of principal of such Security or interest on this Notecoupon;
(vf) any tax, assessment or other governmental charge required imposed on a Holder of a Security or coupon that actually or constructively owns 10 percent or more of the total combined voting power of all classes of stock of the Company entitled to be withheld by any paying agent from any payment vote within the meaning of principal Section 871(h)(3) of the Code or interest on this Note if such payment can be made without withholding by any other paying agentthat is a controlled foreign corporation related to the Company through stock ownership;
(vig) any tax, assessment or other governmental charge which would not have been imposed but for as a result of the failure to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America of the Holder or beneficial owner of this Notea Security or coupon, if such compliance is required by statute or by regulation of the United States Treasury Department States, as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viih) any tax, assessment or other governmental charge imposed with respect to payments on interest received any Registered Security by (Areason of the failure of the Holder to fulfill the statement requirement of Sections 871(h) a 10% shareholder (as defined in Section 871(h)(3)(Bor 881(c) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixi) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (viig) and (viii) in this Section 4(ah); nor shall any Additional Amounts will additional amounts be paid with respect to any payment on any such Security or coupon to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income for federal income tax purposes of a beneficiary or settlor settler with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts the additional amounts had such beneficiary, settlorsettler, member or beneficial owner been the HolderHolder of such Security or coupon.
Appears in 2 contracts
Sources: Indenture (Philip Morris Companies Inc), Indenture (Philip Morris Companies Inc)
Payment of Additional Amounts. The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company or a paying agent of the principal of and interest on this Note the Notes to such a Foreign Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any a political subdivision or taxing authority thereof or therein, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note the Notes to be then due and payable (such amountspayable; PROVIDED, the “Additional Amounts”); provided, howeverHOWEVER, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) any 1. to a tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, considered as:
a. being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
b. having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
c. being or having been a citizen foreign or resident domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States or a corporation that has accumulated earnings to avoid United States federal income tax; or
d. being or having been a "10-percent shareholder" of the Company as defined in section 871(h)(3) of the United States Internal Revenue Code of America 1986, as amended, (the "Code") or treated as any successor provision;
2. to any Holder that is not the sole beneficial owner of the Notes, or a resident thereof portion thereof, or being that is a fiduciary or having partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner or member of the partnership would not have been engaged in trade entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or business member received directly its beneficial or present in distributive share of the payment;
3. to a tax, assessment or governmental charge that is imposed or withheld solely by reason of the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or beneficial owner of such Notes, if compliance is required by statute, by regulation of the United States Treasury Department or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which reduction of, such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any 4. to a tax, assessment or other governmental charge that is imposed otherwise than by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation withholding by the Company or a personal holding company with respect to paying agent from the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxpayment;
(iv) any 5. to a tax, assessment or other governmental charge which that is payable otherwise imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than by withholding from 15 days after the payment of principal of becomes due or interest on this Noteis duly provided for, whichever occurs later;
(v) 6. to an estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
7. to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Notes, if such payment can be made without such withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) 8. in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder"1." - "7."
Appears in 2 contracts
Sources: Second Supplemental Indenture (TRW Inc), Third Supplemental Indenture (TRW Inc)
Payment of Additional Amounts. The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts (“Additional Amounts”) as may be are necessary so in order that every the net payment by the Company or the Paying Agent of the principal of and interest on this Note the Notes to such Holdera Holder who is not a United States person, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (“Tax”) imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment Tax that is imposed by reason of the Holder (or other governmental charge that would not have been imposed but the beneficial owner for (A) whose benefit such Holder holds the existence of any present or former connection between such HolderNotes), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(i) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargeStates;
(iii) any taxbeing or having been a personal holding company, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for U.S. federal income tax purposes or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States U.S. federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment having been a “10-percent shareholder” of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (us as defined in Section 871(h)(3)(B871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder;
(v) of the Company or (B) being a controlled foreign corporation with respect that is related to the Company within the meaning of Section 864(d)(4) of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixvi) any combination being a bank receiving payments on an extension of items credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(i), (ii), (iii), (iv), (v), (vi), (viib) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary fiduciary, partnership or partnership limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereof, or member of the partnership or limited liability company would not have been entitled to the payment of such an Additional Amounts Amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(c) to any Tax that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such Tax;
(d) to any Tax that is imposed otherwise than by withholding by the Company or a paying agent from the payment;
(e) to any Tax that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the Holderpayment becomes due or is duly provided for, whichever occurs later;
(f) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property or similar Tax;
(g) to any Tax required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by at least one other paying agent;
(h) to any Tax that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(i) to any Tax imposed under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
(j) in the case of any combination of clauses (a) through (i) above.
Appears in 2 contracts
Sources: Seventh Supplemental Indenture (DXC Technology Co), Supplemental Indenture (DXC Technology Co)
Payment of Additional Amounts. The All payments in respect of the Notes will be made by or on behalf of the Company shall pay to the Holder (includingwithout withholding or deduction for, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of of, any present or future taxtaxes, assessment duties, assessments or other governmental charge charges of whatever nature, imposed upon such Holder or levied by the United States of America or any taxing authority thereof or therein, or by any other jurisdiction from or through which payment is made, unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company will pay to a holder who is not a United States person such additional amounts on the Notes as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, such Notes to a holder, after such withholding or deduction, will not be less than the amount provided in this Note such Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company shall foregoing obligation to pay additional amounts will not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as;
(A) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(B) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of such Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forStates;
(iiC) any estatebeing a controlled foreign corporation related to the Company directly, inheritance, gift, sales, transfer, excise, personal property indirectly or similar tax, assessment or other governmental chargeconstructively through stock ownership for United States federal income tax purposes;
(iiiD) being an owner of a 10% or greater interest in voting stock of the Company within the meaning of Section 871(h)(3) of the U.S. Internal Revenue Code of 1986, as amended (the ‘‘Code’’) or any successor provision; or
(E) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(2) to any holder that is not the sole beneficial owner of such Notes, or a portion of such Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly from the Company its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of the holder or beneficial owner of the applicable Note, to comply with any applicable certification, information, documentation identification or other information reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America the holder or beneficial owner of the Holder of this Notesuch Notes, if such compliance is required by statute or statute, by regulation of the United States Treasury Department or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii4) to any tax, assessment or other governmental charge that is imposed on interest received otherwise than by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of withholding from the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Codepayment;
(viii5) to any estate, inheritance, gift, sales, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the holder of any such Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the holder or beneficial owner thereof would have been entitled to additional amounts had the Note been presented for payment on the last day of such 30 day period;
(7) to any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to Sections 1471 through 1474 of the taxation of savings adopted on June 3, 2003 by the European Union’s Economic Code and Financial Affairs Council, related Treasury regulations and pronouncements or any law successor provisions thereto (that are substantively comparable and not materially more onerous to comply with) and any regulations or official law, agreement or interpretations thereof in any jurisdiction implementing or complying with, or introduced in order to conform to, such Directivean intergovernmental approach thereto; or
(ix) 8) in the case of any combination of items (i)1)-(7) of this clause 8. Except as specifically provided by this provision, (ii)the Company will not be required to make any payment for any tax, (iii)duty, (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall assessment or governmental charge of whatever nature imposed by any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 2 contracts
Sources: Eleventh Supplemental Indenture (BALL Corp), Twelfth Supplemental Indenture (BALL Corp)
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, the United Kingdom, France, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been holding of a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Note),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this Note, the Note if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations Issuer has given the Holders at least 30 days’ notice that may Holders shall be promulgated thereunderrequired to provide such information and identification; provided, however, this clause (iii) shall not apply if the provision of information, documentation or other evidence described in this clause (iii) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of the Company Notes than comparable information or other reporting requirements imposed under U.S. tax law, regulation (Bincluding proposed regulations) a controlled foreign corporation with respect to the Company within the meaning of the Code;and administrative practice,
(viiiiv) any Taxes payable otherwise than by deduction or withholding or deduction that is from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other directive implementing the taxation conclusions of savings adopted on June 3the ECOFIN Council meeting of November 26-27, 2003 by the European Union’s Economic and Financial Affairs Council, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; ordirectives,
(ixvi) any combination of items Taxes that would have been avoided by presenting for payment (i), (ii), (iii), (iv), (v), (vi), where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, and
(viii) in this Section 4(a); nor shall any Additional Amounts be paid payment on the Note to any a Holder who that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(e) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after in respect of the Notes and Coupons by the Issuer will be made without withholding or deduction or withholding for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, withheld or assessed by or within the United States or any political subdivision or any authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In such event the Issuer will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes, such additional amounts as are necessary in order that the net payment by the Issuer or a paying agent of the principal of and interest on the Notes or the Coupons to a holder who is not a United States person (as defined below), after deduction for any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any a political subdivision or taxing authority thereof or therein, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note the Notes or any coupons to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) in respect of any Note or Coupon presented for payment by the holder of any Note or Coupon who is not a United States Alien (as defined herein):
(b) to a tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and the United States includingor a person holding a power over an estate or trust administered by a fiduciary holder, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being considered as:
(i) being or having been a citizen present or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States or having or having had a permanent establishment in the United States;
(ii) having a current or former relationship with the United States, including a relationship as a citizen or resident thereof;
(iii) a personal holding company, a foreign personal holding company with respect to the United States, a controlled foreign corporation or a passive foreign investment company for United States tax purposes or a corporation subject to the accumulated earnings tax;
(iv) being or having been (i) a "10-percent shareholder" of Americathe Issuer as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the "Code") or (Bii) such holder being a bank receiving interests described in Section 881(d)(3)(A) of the Code; or
(c) to a tax, assessment or governmental charge that is imposed or withheld solely by reason of the payment being made in the United States on a Note or Coupon;
(d) to a tax, assessment or governmental charge that is imposed or withheld solely by reason of the failure to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the holder or beneficial owner of such Note or any coupon appertaining thereto, if compliance is required by statute or by regulation of the United States Treasury Department or income tax treaty as a precondition to exemption from such tax, assessment or other governmental charge;
(e) to a tax, assessment or governmental charge that is imposed otherwise than by withholding by the Issuer or a paying agent from the payment;
(f) to a tax, assessment or governmental charge that would not have been imposed or withheld but for the presentation by the holder of this such Note or Coupon appertaining thereto for payment on a date more than 30 days after the later of Relevant Date (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided foras defined herein);
(iig) in respect of any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiih) any tax, assessment or other governmental charge imposed by reason in respect of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from a holder that is not the beneficial owner of the Note or Coupon, or a portion of either, or that is a foreign or fiduciary partnership, but only to the extent that a beneficial owner, settlor with respect to such fiduciary or member of the partnership would not have been entitled to the payment of principal such additional amounts had the beneficial owner or member received directly its beneficial or distributive share of or interest on this Notethe payment;
(vi) in respect of any tax, tax assessment or other governmental charge required to be withheld by any paying agent from any payment of the principal of or interest on this any Note or Coupon, if such payment can be made without such withholding by any other paying agent;; or
(vij) in the case of any combination of items (a), (b), (c), (d), (e), (f), (g),(h) and (i). The Notes and Coupons are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided under this heading and under the heading "Redemption for Taxation Reasons", the Issuer shall not be required to make any payment with respect to any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary government or a member of such partnership political subdivision or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member taxing authority thereof or beneficial owner been the Holdertherein.
Appears in 1 contract
Payment of Additional Amounts. The Company shall will, subject to certain exceptions and limitations set forth below, pay such additional amounts (the "Additional Amounts") to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts United States Alien as may be necessary so in order that every net payment of the principal of and interest on this Note to and any other amounts payable on such HolderNote, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided for in this Note to be then due and payable (such amounts, the “Additional Amounts”); providedpayable. The Company will not, however, that the Company shall not be required to make any payment of Additional Amounts to any such Holder for or on account of:
(a) any such tax, assessment or other governmental charge that would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of such Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the United States and its possessions, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein or having or having had a permanent establishment therein or (ii) the presentation by the Holder of this Note for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such Holder's past or present status as a personal holding company or foreign personal holding company or controlled foreign corporation or passive foreign investment company with respect to the United States or as a corporation that accumulates earnings to avoid United States federal income tax or as a private foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge that is payable otherwise than by withholding from payments on or in respect of this Note;
(e) any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation information or other reporting requirements concerning the nationality, residence, residence or identity or connections with the United States of America of the Holder owner or beneficial owner of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viig) any tax, assessment or other governmental charge imposed on interest received by (A) a reason of such Holder's past or present status as the actual or constructive owner of 10% shareholder (as defined in Section 871(h)(3)(B) or more of the United States Internal Revenue Code total combined voting power of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) all classes of stock entitled to vote of the Company or (B) as a controlled foreign corporation with respect to the Company within the meaning direct or indirect subsidiary of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such DirectiveCompany; or
(ixh) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vi), f) or (vii) and (viii) in this Section 4(ag); nor shall any Additional Amounts be paid with respect to any Holder payment on this Note to a United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderHolder of this Note.
Appears in 1 contract
Payment of Additional Amounts. If specified pursuant to Section 301, the provisions of this Section 1010 shall be applicable to Securities of any series. The Company shall will, subject to the exceptions and limitations set forth below, pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note any Security or coupon who is a Non-U.S. Person (as defined below) United States Alien such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such HolderSecurity or coupon, after deduction or withholding by the Company or any of its Paying Agents for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided in this Note such Security or in such coupon to be then due and payable (such amountspayable. However, the “Additional Amounts”); provided, however, that the Company shall will not be required to make any payment of Additional Amounts additional amounts if the Holder is subject to taxation solely for reasons other than its ownership of the Security or coupon, nor will the Company make any payment of additional amounts for or on account of:
(ia) any tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection (other than the mere fact of being a Holder of a Security or coupon) between such Holder, Holder (or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of person holding a power over, over such Holder, if such Holder is an estate, estate or trust, or a member or shareholder of such Holder, if such Holder is a partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, memberperson holding a power, shareholder member or possessor, shareholder) being or having been a citizen or citizen, resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forthereof;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiib) any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the Holder (or a fiduciary, settlor, beneficiary or person holding a power over such ▇▇▇▇▇▇’s past Holder, if such Holder is an estate or trust, or a member or shareholder of such Holder, if such Holder is a partnership or corporation) (i) being or having been present status in, or engaged in a trade or business in, the United States, (ii) being treated as having been present in, or engaged in a trade or business in, the United States, or (iii) having or having had a permanent establishment in the United States;
(c) any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the Holder (or a fiduciary, settlor, beneficiary or person holding a power over such Holder, if such Holder is an estate or trust, or a member or shareholder of such Holder, if such Holder is a partnership or corporation) being or having been with respect to the United States a personal holding company, a controlled foreign corporation, a foreign personal holding company, a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of Americaforeign private foundation or other foreign tax-exempt organization, or as being a corporation which that accumulates earnings to avoid United States federal income tax;
(ivd) any tax, assessment or other governmental charge imposed on a Holder that actually or constructively owns 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote within the meaning of Section 871(h)(3) of the Code;
(e) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is payable otherwise than by withholding from payment of principal of or interest on this Noteduly provided for, whichever occurs later;
(vf) any tax, assessment or other governmental charge that is payable by any method other than withholding or deduction by the Company or any Paying Agent from payments in respect of such Security or coupon;
(g) any gift, estate, inheritance, sales, transfer, personal property or excise tax or any similar tax, assessment or other governmental charge;
(h) any tax, assessment or other governmental charge required to be withheld by any paying agent Paying Agent from any payment in respect of principal of any Security or interest on this Note coupon if such payment can be made without such withholding by any at least one other paying agentPaying Agent;
(vii) any tax, assessment or other governmental charge which would not have been that is imposed but for or withheld by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(j) any tax, assessment or other governmental charge imposed as a result of the failure to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America of the Holder or beneficial owner of this Notea Security or coupon, if such compliance is required by statute or by regulation of the United States Treasury Department States, as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viik) any tax, assessment or other governmental charge imposed with respect to payments on interest received any Registered Security by (Areason of the failure of the Holder to fulfill the statement requirement of Sections 871(h) a 10% shareholder (as defined in Section 871(h)(3)(Bor 881(c) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixl) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i), (ii), (iii), (iv), (v), (vi), (viij) and (viii) in this Section 4(ak); nor shall any Additional Amounts be paid . In addition, the Company will not pay additional amounts to any Holder who a beneficial owner of a Security or coupon that is a fiduciary fiduciary, partnership, limited liability company or partnership other fiscally transparent entity, or to a beneficial owner of a Security or coupon that is not the sole beneficial owner of such Security or coupon, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofor member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, member or beneficial owner been or member received directly its beneficial or distributive share of the Holderpayment.
Appears in 1 contract
Sources: Indenture (Kraft Foods Inc)
Payment of Additional Amounts. The Company All payments of Principal and interest in respect of the Securities shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal free and clear of and interest on this Note to such Holder, after without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed upon such Holder or levied by or on behalf of (i) the government of the United Kingdom or of any territory of the United Kingdom or by any authority or agency therein or thereof having the power to tax or (ii) the government of the United States or of America any state or territory of the United States or by any taxing authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the extent such Taxes are required to be withheld or thereindeducted by law or by the interpretation or administration thereof. If either the Company or the Guarantor is so required to withhold or deduct any amount for or on account of Taxes from any payment made in respect of the Securities, will the Company or the Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to Taxes:
(ia) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, Holder or beneficial owner of the Securities (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderHolder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United Kingdom or the United States or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or present in having or having had a permanent establishment therein;
(b) that are estate, inheritance, gift, sales, transfer, personal property, wealth or similar taxes, duties, assessments or other governmental charges;
(c) that are payable other than by withholding from payments of Principal of or interest on the United States Securities;
(d) that would not have been imposed but for the failure of Americathe applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes;
(Be) that would not have been imposed but for the presentation of this Note a Security (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is was duly provided for, whichever occurred later;
(iif) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is are imposed on a payment to an individual and is are required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such Directive;
(g) that would not have been imposed if presentation for payment of the relevant Securities had been made to a Paying Agent other than the Paying Agent to which the presentation was made;
(h) that are imposed solely by reason of the Holder or beneficial owner owning or having owned, actually or constructively, 10% or more of the total combined voting power of all classes of the Company’s stock entitled to vote;
(i) that would not have been imposed but for a failure by the Holder or beneficial owner (or any financial institution through which the Holder or beneficial owner holds any Security through which payment on the Security is made) to comply with any certification, information, identification, documentation or other reporting requirements (including entering into and complying with an agreement with the U.S. Internal Revenue Service) imposed pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code as in effect on the date of issuance of the Notes or any successor or amended version of such provisions; or
(ixj) any combination of items the foregoing clauses (a) through (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid with respect to any payment of the Principal of or interest on any Security to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of the Security. The Company shall maintain, in respect of Securities of each series outstanding, at least one Paying Agent located outside the United Kingdom. In the event that a Paying Agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a Paying Agent in at least one member state that will not be obliged to withhold or deduct taxes pursuant to any law implementing European Council Directive 2003/48/EC or any other Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such Directive. The obligation of the Company or the Guarantor, as the case may be, to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all amounts in respect of the Securities.”
SECTION 2.02 Amendments to Section 4.08 Relating to Reports by the Company and the Guarantor. Paragraph (a) of Section 4.08 of the Indenture is amended, with respect to Securities outstanding under series created on or after the date hereof, to read as follows:
(a) file with the Trustee, within 15 days after the Company or the Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company or the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company or the Guarantor is not required to file information, documents or reports pursuant to either of such Sections, then it will file with the Trustee, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; provided that reports, information and documents filed by the Company or the Guarantor with the Commission via the ▇▇▇▇▇ System will be deemed filed with the Trustee for purposes of this Section 4.08 as of the time that such reports, information and documents are filed via the ▇▇▇▇▇ System;”.
SECTION 2.03 Amendments to Section 7.01
Appears in 1 contract
Sources: Supplemental Indenture (Glaxosmithkline Capital PLC)
Payment of Additional Amounts. (a) The Company shall pay shall, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company of the principal of and interest on this Note the Notes to such Holdera Holder of the Notes who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to any tax, assessment or other governmental charge that would not have been reported but for the Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
A. being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
B. having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment or the enforcement of any rights hereunder), including being or having been a citizen or resident of the United States;
C. being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
D. being or having been a “10-percent shareholder” of the Parent Guarantor as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision; or
E. being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(ii) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or any present other person to comply with certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof the holder or beneficial owner of the Notes, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by us or a paying agent from the payment;
(v) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or (B) the presentation of this Note for payment on a date administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(iivi) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iiivii) to any tax, assessment withholding or other governmental charge deduction that is imposed by reason of such ▇▇▇▇▇▇’s past on a payment to an individual and that is required to be made pursuant to any law implementing or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of Americacomplying with, or as a corporation which accumulates earnings introduced in order to avoid United States federal income taxconform to, any European Union Directive on the taxation of savings;
(ivviii) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Notes, if such payment can be made without such withholding by any at least one other paying agent;
(viix) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this Noteany Notes, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition date on which payment thereof is duly provided for, whichever occurs later;
(x) to relief or exemption from such any tax, assessment or other governmental chargecharge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes only;
(viixi) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixxii) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) and (viiixi).
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided for in this Section 4(a); nor 5.01, the Company shall not be required to make any Additional Amounts be paid to payment for any Holder tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) For purposes of this Section 5.01 and Section 4.04, the term “United States” means the United States of America, the states of the United States, and the District of Columbia, and the term “United States person” means any individual who is a fiduciary citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, any estate the income of which is subject to United States federal income taxation regardless of its source, or any trust, if it (i) is subject to the extent that primary supervision of a beneficiary court within the United States and one or settlor with respect more United States persons have the authority to such fiduciary control all substantial decisions of the trust, or (ii) has a member of such partnership or valid election in effect under applicable U.S. Treasury Regulations to be treated as a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderUnited States person.
Appears in 1 contract
Sources: Second Supplemental Indenture (Warner Bros. Discovery, Inc.)
Payment of Additional Amounts. The All payments in respect of the Notes shall be made by or on behalf of the Company shall pay to the Holder (includingwithout withholding or deduction for, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account of of, any present or future taxtaxes, assessment duties, assessments or other governmental charge charges of whatever nature, imposed upon such Holder or levied by the United States of America or any taxing authority thereof or therein, will unless such withholding or deduction is required by law. If such withholding or deduction is required by law, the Company shall pay to a holder who is not a United States person such additional amounts (the “Additional Amounts”) on the Notes as are necessary in order that the net payment by the Company or a paying agent of the principal of, and premium or Redemption Price, if any, and interest on, the Notes to such holder, after such withholding or deduction, shall not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderholder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States or having or having had a qualified business unit which has the U.S. Dollar as its functional currency;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment or the enforcement of any rights thereunder) or being considered as having such relationship, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged in trade or business or present in the United States of Americaa personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates foreign personal holding company that has accumulated earnings to avoid United States federal income tax;
(ivd) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment having been an owner of principal of a “10% or greater interest on this Note;
(v) any tax, assessment in the capital or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America profits of the Holder Company within the meaning of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and or any successor provision; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the regulations ordinary course of its trade or business;
(ii) to any Holder that may be promulgated thereunder) is not the sole beneficial owner of the Company Notes, or (B) a controlled foreign corporation portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the Company within the meaning fiduciary, a beneficial owner or member of the Codepartnership or limited liability company would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(viiiiii) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment;
(v) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(vi) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(vii) to any withholding or deduction that is imposed on a payment to an individual and that is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(viii) to any tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such Directivepayment can be made without such withholding by at least one other Paying Agent;
(ix) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(x) to any withholding or deduction that is imposed on a payment pursuant to Sections 1471 through 1474 of the Code and related Treasury regulations and pronouncements (the Foreign Account Tax Compliance Act (“FATCA”)) or any successor provisions and any regulations or official law, agreement or interpretations thereof implementing an intergovernmental approach thereto; or
(ixxi) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (viii) x). The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 4(a1.04(f); nor , the Company shall not be required to make any Additional Amounts be paid to payment for any Holder who is a fiduciary tax, duty, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary governmental charge of whatever nature imposed by any government or a member political subdivision or taxing authority of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member in any government or beneficial owner been the Holderpolitical subdivision.
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after the Notes will be made free and clear of and without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed upon by any Relevant Taxing Jurisdiction, unless the withholding of such Holder Taxes is required by law or the United States official interpretation or administration thereof. The Issuer will, subject to the exceptions and limitations set forth below, pay such additional amounts as are necessary in order that the net payment of America the principal of and interest on the Notes to a Holder, after deduction for any present or future Taxes of any taxing authority thereof or thereinRelevant Taxing Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein having power to tax, assessment );
(b) to any Taxes that are imposed or other governmental charge that would not have been imposed but for (A) withheld by reason of the existence of any present or former connection between the Holder or beneficial owner of such Holder, note (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, or a Person holding a power over an estate or trust administered by a fiduciary holder) and the United States includingRelevant Taxing Jurisdiction (other than merely holding or being a beneficial owner of such note or the receipt or enforcement of payments or deliveries thereunder), without limitation, including such Holder, Holder or such fiduciary, settlor, beneficiary, member, shareholder or possessor, beneficial owner being or having been organized or incorporated in, a citizen national, domiciliary or resident of the United States of America resident, or treated as a resident thereof resident, of, or being or having been physically present or engaged in a trade or business business, or present in having had a permanent establishment, in, such Relevant Taxing Jurisdiction;
(c) to any Holder that is not the sole beneficial owner of the Note, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary, a beneficial owner or member of the partnership would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(d) to any Taxes that are imposed or withheld solely by reason of the failure to (i) comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction of, or other information relating to, the Holder or beneficial owner of such Note, if compliance is required by the Relevant Taxing Jurisdiction for not falling under the scope of such Taxes (including for purposes of the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021)), or as a precondition to relief or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service (“IRS”) Form W-8 (with any required attachments)) or (ii) comply with any information gathering and reporting requirements or to take any similar action (including entering into any agreement with the IRS), in each case, that are required to obtain the maximum available exemption from withholding by a Relevant Taxing Jurisdiction that is available to payments received by or on behalf of Americathe Holder;
(e) to any Taxes that are imposed otherwise than by withholding from the payment;
(f) to any Taxes that are imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than fifteen (B15) days after the payment becomes due or is duly provided for, whichever occurs later;
(g) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(h) to any Taxes required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other Paying Agent;
(i) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of this Note such Notes for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and payable, except to the extent that the Holder or beneficial owner thereof would have been entitled to additional amounts had the Notes been presented for payment on any date during such thirty (y30) the date on which payment thereof is duly provided forday period;
(iij) to any estate, inheritance, gift, sales, transfer, excise, personal property backup withholding or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge Taxes imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America under Sections 1471 through 1474 of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the any current or future regulations that may be promulgated thereunderor official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Company Code, or (B) a controlled foreign corporation any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with respect to the Company within the meaning implementation of such sections of the Code;
(viiik) to any Dutch withholding or deduction that is tax under the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) imposed on a payment to Holder or, where applicable, a beneficiary (voordeelsgerechtigde) of the Notes for purposes of the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021) that is an individual and entity that is required to be made pursuant to that European Union Directive relating related (gelieerd) to the taxation Issuer within the meaning of savings adopted on June 3the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021). An entity is considered related to the Issuer if (i) it directly or indirectly holds a Qualifying Interest in the Issuer, 2003 by (ii) the European Union’s Economic and Financial Affairs CouncilIssuer directly or indirectly holds a Qualifying Interest in the entity, or any law implementing (iii) a third party or complying with, a Qualifying Unity (kwalificerende eenheid) directly or introduced indirectly holds a Qualifying Interest in order to conform to, such Directiveboth the Issuer and the entity; or
(ixl) in the case of any combination of any items (ia) through (k). The Notes are subject in all cases to any tax, (ii), (iii), (iv), (v), (vi), (vii) and (viii) in fiscal or other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided by this Section 4(a); nor 4.14, the Issuer and the Guarantors shall not be required to make any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor payment with respect to such fiduciary any tax, assessment or governmental charge imposed by any government or a member of such partnership political subdivision or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member taxing authority thereof or beneficial owner been the Holdertherein.
Appears in 1 contract
Payment of Additional Amounts. The If any deduction or withholding for any present or future taxes, assessments or other governmental charges of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company or a successor corporation under the Notes, the Company or a successor corporation shall pay to the each Holder (includingof Notes as additional interest, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such HolderHolder of such Notes who, after deduction or withholding for or on account of with respect to any present or future such tax, assessment or other governmental charge imposed upon charge, is not resident in, or a citizen of, such Holder by the United States of America jurisdiction, after such deduction or any taxing authority thereof or thereinwithholding, will shall be not be less than the amount provided specified in this Note such Notes to be then due and payable (which such amounts, the “Additional Amounts”)Holder is entitled; provided, however, that the Company or a successor corporation shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any Any tax, assessment or other governmental charge that would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bii) the presentation of this a Note (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later, or (iii) the presentation of a Note for payment in Bermuda or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere;
(iib) any Any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiic) any Any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which that is payable otherwise than by withholding from payment of principal of of, premium, if any, or any interest on this Notethe Notes;
(vd) any Any tax, assessment or other governmental charge required to be that is imposed or withheld by any paying agent from any payment reason of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure by the Holder or the beneficial owner of the Note to comply with certification, a request of the Company addressed to the Holder (i) to provide information, documentation documents or other reporting requirements evidence concerning the nationality, residence, residence or identity or connections with the United States of America of the Holder or such beneficial owner or (ii) to make and deliver any declaration or other similar claim or satisfy any information or reporting requirements, which, in the case of this Note(i) or (ii), if such compliance is required or imposed by statute a statute, treaty, regulation or by regulation administrative practice of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixe) any Any combination of items (ia), (iib), (iii), (iv), (v), (vi), (viic) and (viiid) in this Section 4(a)above; nor shall any Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of (x) Bermuda or any political subdivision or governmental authority thereof or therein having the power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of such Note. The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes, if any, by the Company. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agent, as applicable, upon request therefor. All references herein and in the Indenture to principal of, premium, if any, and interest on the Notes shall include any Additional Amounts payable by the Company in respect of such principal, such premium, if any, and such interest.
Appears in 1 contract
Payment of Additional Amounts. (a) The Company shall pay shall, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company of the principal of and interest on this Note the Notes to such Holdera Holder of the Notes who is not a United States person (as defined below), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i) to any tax, assessment or other governmental charge that would not have been reported but for the Holder (or the beneficial owner for whose benefit such Holder holds such Notes), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
A. being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
B. having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment or the enforcement of any rights hereunder), including being or having been a citizen or resident of the United States;
C. being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
D. being or having been a “10-percent shareholder” of the Guarantor as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision; or
E. being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(ii) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(iii) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or any present other person to comply with certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof the holder or beneficial owner of the Notes, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from such tax, assessment or other governmental charge;
(iv) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by us or a paying agent from the payment;
(v) to any tax, assessment or other governmental charge that would not have been imposed but for a change in law, regulation, or (B) the presentation of this Note for payment on a date administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(iivi) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iiivii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Notes, if such payment can be made without such withholding by any at least one other paying agent;
(viviii) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this Noteany Notes, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition date on which payment thereof is duly provided for, whichever occurs later;
(ix) to relief or exemption from such any tax, assessment or other governmental chargecharge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes only;
(viix) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Internal Revenue Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) such sections of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Internal Revenue Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixxi) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (viiix).
(b) The Notes are subject in this Section 4(a); nor shall any Additional Amounts be paid all cases to any Holder tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided for under this Article, the Company shall not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Article and under Section 4.04, the term “United States” means the United States of America, the states of the United States, and the District of Columbia, and the term “United States person” means any individual who is a fiduciary citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, any estate the income of which is subject to United States federal income taxation regardless of its source, or any trust, if it (i) is subject to the extent that primary supervision of a beneficiary court within the United States and one or settlor with respect more United States persons have the authority to such fiduciary control all substantial decisions of the trust, or (ii) has a member of such partnership or valid election in effect under applicable U.S. Treasury Regulations to be treated as a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderUnited States person.
Appears in 1 contract
Sources: Thirteenth Supplemental Indenture (Discovery Communications, Inc.)
Payment of Additional Amounts. If specified pursuant to Section 301, the provisions of this Section 1009 shall be applicable to Securities of any series. The Company shall or the Guarantor will, subject to the exceptions and limitations set forth below, pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note any Security or coupon who is a Non-U.S. Person (as defined below) United States Alien such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such HolderSecurity or coupon, after deduction or withholding by the Company or the Guarantor or any of their Paying Agents for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America (or any political subdivision or taxing authority thereof or therein), will not be less than the amount provided in this Note such Security or in such coupon to be then due and payable (such amountspayable. However, the “Additional Amounts”); provided, however, that Company and the Company shall Guarantor will not be required to make any payment of Additional Amounts additional amounts for or on account of:
(ia) any tax, assessment or other governmental charge that would not have been so imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, settler or beneficiary of, member or shareholder of, or possessor of a person holding a power over, such Holder, if such Holder is an estate, estate or trust, or a member or shareholder of such Holder, if such Holder is a partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder (or such fiduciary, settlorsettler, beneficiary, memberperson holding a power, shareholder member or possessor, shareholder) being or having been a citizen or citizen, resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in therein or having or having had a permanent establishment therein, or (ii) such Holder's present or former status as a personal holding company, foreign personal holding company, controlled foreign corporation or passive foreign investment company with respect to the United States of Americaor as a corporation that accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or (B) other governmental charge which would not have been so imposed but for the presentation by the Holder of this Note such Security or coupon for payment on a date more than 30 10 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iic) any estate, inheritance, gift, sales, transfer, excise, personal property tax or any similar tax, assessment or other governmental charge;
(iiid) any tax, assessment or other governmental charge imposed required to be withheld by reason any Paying Agent from any payment in respect of any Security or coupon, if such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxpayment can be made without such withholding by at least one other Paying Agent;
(ive) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments in respect of principal of such Security or interest on this Notecoupon;
(vf) any tax, assessment or other governmental charge required imposed on a Holder of a Security or coupon that actually or constructively owns 10 percent or more of the total combined voting power of all classes of stock of the Company entitled to be withheld by any paying agent from any payment vote within the meaning of principal Section 871(h)(3) of the Code or interest on this Note if such payment can be made without withholding by any other paying agentthat is a controlled foreign corporation related to the Company or the Guarantor through stock ownership;
(vig) any tax, assessment or other governmental charge which would not have been imposed but for as a result of the failure to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America of the Holder or beneficial owner of this Notea Security or coupon, if such compliance is required by statute or by regulation of the United States Treasury Department States, as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viih) any tax, assessment or other governmental charge imposed with respect to payments on interest received any Registered Security by (Areason of the failure of the Holder to fulfill the statement requirement of Sections 871(h) a 10% shareholder (as defined in Section 871(h)(3)(Bor 881(c) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixi) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (viig) and (viii) in this Section 4(ah); nor shall any Additional Amounts will additional amounts be paid with respect to any payment on any such Security or coupon to a Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the United States (or any political subdivision thereof) to be included in the income for federal income tax purposes of a beneficiary or settlor settler with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts the additional amounts had such beneficiary, settlorsettler, member or beneficial owner been the HolderHolder of such Security or coupon.
Appears in 1 contract
Sources: Indenture (Keyspan Corp)
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident holding of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Notes),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this the Note, if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) [Reserved],
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation Taxes with respect to such Note presented for payment more than 30 days after the Company within date on which the meaning payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of the Code;such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(viii) any withholding or deduction payment on the Note to a Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(c) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(c) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax- exempt organization or financial institution, register with the Mexican Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The If any deduction or withholding for any present or future taxes, assessments or other governmental charges of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company or a successor corporation under the Notes, the Company or a successor corporation will pay to each Holder of the Holder (includingNotes as additional interest, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such Holderholder of such Notes who, after deduction or withholding for or on account of with respect to any present or future such tax, assessment or other governmental charge imposed upon charge, is not resident in, or a citizen of, such Holder by the United States of America jurisdiction, after such deduction or any taxing authority thereof or thereinwithholding, will shall be not be less than the amount provided specified in this Note such Notes to be then due and payable (which such amounts, the “Additional Amounts”)Holder is entitled; provided, however, that the Company or a successor corporation shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any Any tax, assessment or other governmental charge that would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bii) the presentation of this a Note (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later, or (iii) the presentation of a Note for payment in Bermuda or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere;
(iib) any Any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiic) any Any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which that is payable otherwise than by withholding from payment of principal of of, premium, if any, or any interest on this Notethe Notes;
(vd) any Any tax, assessment or other governmental charge required to be that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a request of the Company addressed to the Holder (i) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make and deliver any paying agent from any payment declaration or other similar claim (other than a claim for refund of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any a tax, assessment or other governmental charge which would not have been withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed but for the failure to comply with certificationby a statute, informationtreaty, documentation regulation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America administrative practice of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixe) any Any combination of items (ia), (iib), (iii), (iv), (v), (vi), (viic) and (viiid) in this Section 4(a)above; nor shall any Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of (x) Bermuda or any political subdivision or governmental authority thereof or therein having the power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of such Note. The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes, if any, by the Company. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agent, as applicable, upon request therefor. All references in this Indenture to principal of, premium, if any, and interest on the Notes shall include any Additional Amounts payable by the Company in respect of such principal, such premium, if any, and such interest.
Appears in 1 contract
Sources: Indenture (Global Crossing LTD)
Payment of Additional Amounts. (a) The Company shall pay shall, subject to the exceptions and limitations set forth below, pay as additional interest on the Note, such additional amounts as are necessary in order that the net payment by the Company or a paying agent of the principal of and interest on the Note to a Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such United States Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any a political subdivision or taxing authority thereof or therein, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note that would have been payable had no such withholding or deduction been required.
(b) The Company’s obligation to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company pay additional amounts shall not be required to make any payment of Additional Amounts for or on account of:
apply (i) any to a tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present beneficial owner or former connection between such the Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership partnership, limited liability company, corporation or corporationother entity, and or a person holding a power over an estate or trust administered by a fiduciary Holder, being considered as (A) being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States, without limitation(B) having a current or former relationship with the United States, such Holderincluding a relationship as a citizen or resident thereof, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, (C) being or having been a citizen foreign or resident domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States, a corporation that has accumulated earnings to avoid United States federal income tax or a private foundation or other tax-exempt organization or (D) being or having been a “10-percent shareholder” of the Company as defined in section 871(h)(3) of the United States Internal Revenue Code of America 1986, as amended (the “Code”), or treated as a resident thereof any successor provision or being or having been engaged a bank whose receipt of interest on a Note is described in trade section 881(c)(3)(A) of the Code or business any successor provision; (ii) to any beneficial owner that is not the sole beneficial owner of the Note, or present in a portion thereof, or that is a fiduciary, partnership, limited liability company or other fiscally transparent entity, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment; (iii) to a tax, assessment or governmental charge (including backup withholding) that would not have been imposed but for the failure of the Holder or any other person to comply with certification, information, documentation, reporting or other similar requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or other person, if compliance is required by statute or by regulation of the United States Treasury Department, without regard to any tax treaty, or by an applicable income tax treaty to which the United States is a party as a precondition to partial or complete relief or exemption from such tax, assessment or other governmental charge (Bincluding, but not limited to, the failure to provide United States Internal Revenue Service, Form ▇-▇▇▇▇-▇, ▇-▇▇▇▇, ▇-▇▇▇▇ or any subsequent versions thereof), or any other certification, information, documentation, reporting or other similar requirement under United States income tax laws or regulations or intergovernmental agreements (including entering into and complying with an agreement with the U.S. Internal Revenue Service to report information or complying with any similar reporting requirements imposed by an intergovernmental agreement) that would establish entitlement to otherwise applicable relief or exemption from any tax, assessment or governmental charge; (iv) to a tax, assessment or governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from the payment; (v) to a tax, assessment or governmental charge that would not have been imposed or withheld but for a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 10 days after the payment becomes due or is duly provided for, whichever occurs later; (vi) to a tax, assessment or governmental charge that is imposed or withheld by reason of the presentation of this a Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for;
, whichever occurs later; (iivii) any to an estate, inheritance, gift, sales, excise, transfer, excise, wealth or personal property tax or a similar tax, assessment or other governmental charge;
; (iiiviii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Note, if such payment can be made without such withholding by any other paying agent;
; (viix) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that which is imposed on a payment to an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
or (ixx) in the case of any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (viiiix).
(c) The Notes are subject in this Section 4(a); nor shall any Additional Amounts be paid all cases to any Holder who is a fiduciary tax, fiscal or partnership other law or regulation or administrative or judicial interpretation applicable thereto. Except as specifically provided for herein, the Company shall not be required to the extent that a beneficiary or settlor make any payment with respect to such fiduciary any tax, assessment or governmental charge imposed by any government or a member of such partnership political subdivision or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member taxing authority thereof or beneficial owner been the Holdertherein.
Appears in 1 contract
Payment of Additional Amounts. The If any deduction or withholding for any present or future taxes, assessments or other governmental charges of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on any tranche of Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company or a successor corporation under any tranche of Notes, the Company or a successor corporation will pay to the each Holder (includingof such tranche of Notes as additional interest, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such Holderholder of such Notes who, after deduction or withholding for or on account of with respect to any present or future such tax, assessment or other governmental charge imposed upon charge, is not resident in, or a citizen of, such Holder by the United States of America jurisdiction, after such deduction or any taxing authority thereof or thereinwithholding, will shall be not be less than the amount provided specified in this Note such Notes to be then due and payable (which such amounts, the “Additional Amounts”)Holder is entitled; provided, however, that the Company or a successor corporation shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any Any tax, assessment or other governmental charge that would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States taxing jurisdiction or any political subdivision or territory or possession thereof or area subject to its jurisdiction, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bii) the presentation of this a Note (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later, or (iii) the presentation of a Note for payment in Bermuda or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere;
(iib) any Any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iiic) any Any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which that is payable otherwise than by withholding from payment of principal of of, premium, if any, or any interest on this Notethe Notes;
(vd) any Any tax, assessment or other governmental charge required to be that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a request of the Company addressed to the Holder (i) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (ii) to make and deliver any paying agent from any payment declaration or other similar claim (other than a claim for refund of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any a tax, assessment or other governmental charge which would not have been withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (i) or (ii), is required or imposed but for the failure to comply with certificationby a statute, informationtreaty, documentation regulation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America administrative practice of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixe) any Any combination of items (ia), (iib), (iii), (iv), (v), (vi), (viic) and (viiid) in this Section 4(a)above; nor shall any Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of (x) Bermuda or any political subdivision or governmental authority thereof or therein having the power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of such Note. The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes, if any, by the Company. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agent, as applicable, upon request therefor. All references in this Indenture to principal of, premium, if any, and interest on the Notes shall include any Additional Amounts payable by the Company in respect of such principal, such premium, if any, and such interest.
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been holding of a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Note),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this Note, the Note if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations Issuer has given the Holders at least 30 days’ notice that may Holders shall be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect required to the Company within the meaning of the Code;provide such information and identification,
(viiiiv) any Taxes payable otherwise than by deduction or withholding or deduction that is from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC or any other directive implementing the taxation conclusions of savings adopted on June 3the ECOFIN Council meeting of November 26-27, 2003 by the European Union’s Economic and Financial Affairs Council, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive; directives,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid payment on the Note to any a Holder who that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest on this Note to such Holder, after the Notes will be made free and clear of and without withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (collectively, “Taxes”) imposed upon by any Relevant Taxing Jurisdiction, unless the withholding of such Holder Taxes is required by law or the United States official interpretation or administration thereof. The Issuer will, subject to the exceptions and limitations set forth below, pay such additional amounts as are necessary in order that the net payment of America the principal of and interest on the Notes to a Holder, after deduction for any present or future Taxes of any taxing authority thereof or thereinRelevant Taxing Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)Holder would have received if such Taxes had not been withheld or deducted; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any Taxes imposed by the United States (or any political subdivision or taxing authority thereof or therein having power to tax, assessment ) that are imposed or other governmental charge that would not have been imposed but for withheld solely by reason of the Holder or beneficial owner of the Notes (A) the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and or a Person holding a power over an estate or trust administered by a fiduciary holder) being considered as:
(i) being or having been present or engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(ii) having a current or former relationship with the United States, without limitation, such Holder, including a relationship as a citizen or such fiduciary, settlor, beneficiary, member, shareholder or possessor, resident thereof;
(iii) being or having been a citizen foreign or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of Americadomestic personal holding company, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(iv) any tax, assessment being or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have having been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America a “10-percent shareholder” of the Holder Issuer or the Company within the meaning of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directivesuccessor provisions; or
(ixv) being or having been a bank receiving interest described in section 881(c)(3)(A) of the Code or any combination successor provisions;
(b) to any Taxes that are imposed or withheld by reason of items the existence of any present or former connection between the Holder or beneficial owner of such note (ior a fiduciary, settlor, beneficiary, member or shareholder of the Holder if the Holder is an estate, trust, partnership or corporation, or a Person holding a power over an estate or trust administered by a fiduciary holder) and the Relevant Taxing Jurisdiction (other than merely holding or being a beneficial owner of such note or the receipt or enforcement of payments or deliveries thereunder), including such Holder or beneficial owner being or having been organized or incorporated in, a national, domiciliary or resident, or treated as a resident, of, or being or having been physically present or engaged in a trade or business, or having had a permanent establishment, in, such Relevant Taxing Jurisdiction;
(ii), (iii), (iv), (v), (vi), (viic) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is not the sole beneficial owner of the Note, or a portion thereof, or that is a fiduciary or partnership partnership, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or the fiduciary, a beneficial owner thereof, or member of the partnership would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(d) to any Taxes that are imposed or withheld solely by reason of the failure to (i) comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction of, or other information relating to, the Holder or beneficial owner been of such Note, if compliance is required by the Relevant Taxing Jurisdiction for not falling under the scope of such Taxes (including for purposes of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021)), or as a precondition to relief or exemption from such Taxes (including the submission of an applicable United States Internal Revenue Service (“IRS”) Form W-8 (with any required attachments)) or (ii) comply with any information gathering and reporting requirements or to take any similar action (including entering into any agreement with the IRS), in each case, that are required to obtain the maximum available exemption from withholding by a Relevant Taxing Jurisdiction that is available to payments received by or on behalf of the Holder.;
(e) to any Taxes that are imposed otherwise than by withholding from the payment;
(f) to any Taxes that are imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than fifteen (15) days after the payment becomes due or is duly provided for, whichever occurs later;
(g) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or a similar tax, assessment or governmental charge;
(h) to any Taxes required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other Paying Agent;
(i) to any Taxes that are imposed or levied by reason of the presentation (where presentation is required in order to receive payment) of such Notes for payment on a date more than 30 days after the date on which such payment became due and payable, except to the extent that the Holder or beneficial owner thereof would have been entitled to additional amounts had the Notes been presented for payment on any date during such thirty (30) day period;
(j) to any backup withholding or any Taxes imposed under Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(k) to any Dutch withholding tax under the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet bronbelasting 2021) imposed on a Holder or, where applicable, a beneficiary (voordeelsgerechtigde) of the Notes for purposes of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet bronbelasting 2021) that is an entity that is related (gelieerd) to the Issuer within the meaning of the Withholding Tax ▇▇▇ ▇▇▇▇ (Wet Bronbelasting 2021). An entity is considered related to the Issuer if (i) it directly or indirectly holds a Qualifying Interest (as defined below) in the Issuer, (ii) the Issuer directly or indirectly holds a Qualifying Interest in the entity, or (iii) a third party or a collaborating group (samenwerkende groep) directly or indirectly holds a Qualifying Interest in both the Issuer and the entity. The term “Qualifying Interest” means an interest that allows the holder of the interest to individually – or jointly in the case of a collaborating group – exert such a decisive influence on the Issuer’s decisions that such holder or such collaborating group can determine the Issuer’s activities (kwalificerend belang); or
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such Holders all additional amounts as (“Additional Amounts”) that may be necessary so that every net payment of interest, principal of and interest on this Note to such Holder, or other amounts due under the Notes will not be less than the amount provided for in the Notes. “Net payment” in the preceding sentence shall mean the amount the Company or the Paying Agent pays the Holder after deduction deducting or withholding an amount for or on account of any present or future taxtaxes, assessment duties, assessments or other governmental charge charges (“Taxes”) imposed upon such Holder with respect to that payment by the United States of America a Mexican taxing authority, or any political subdivision or taxing authority thereof or thereintherein (a “Relevant Jurisdiction”) (a “Net Payment”). However, the Company will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of pay Additional Amounts to any holder for or on account ofof any of the following:
(ia) any tax, assessment Taxes imposed because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holder, the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holderover the relevant holder or beneficial owner, if such Holder the relevant holder or beneficial owner is an estate, nominee, trust, partnership partnership, limited liability company or corporation, ) of the Note and the United States includingRelevant Jurisdiction, without limitation, including such Holder, Holder or such beneficial owner (or a fiduciary, settlor, beneficiary, membermember or shareholder of, shareholder or possessor, possessor of power over the relevant holder or beneficial owner) (i) being or having been a citizen or resident of thereof for tax purposes, (ii) maintaining or having maintained an office, permanent establishment, or branch, in all cases subject to taxation therein to which such payments on the United States of America Notes are attributable, or treated as a resident thereof or (iii) being or having been present or engaged in a trade or business therein (other than the receipt of payments or present in the United States ownership or holding of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Note),
(iib) any estate, inheritance, gift, sales, transferuse, excise, transfer, personal property or similar tax, assessment or other governmental charge;
(iii) any taxduty, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;Notes,
(ivc) any tax, assessment Taxes imposed because the Holder or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for person having a beneficial interest in the failure Notes fails to comply with any certification, information, documentation or other reporting requirements requirement concerning the nationality, residenceresidence for tax purposes, certification or identity or connections with the United States of America of the Holder or any beneficial owner of this Notethe Note with the Relevant Jurisdiction, if such compliance is required by statute statute, rule, regulation, officially published administrative practice of the taxing jurisdiction or by regulation of the United States Treasury Department an applicable income tax treaty, which is in effect, to which Mexico is a party, as a precondition to relief exemption from, or exemption from such taxreduction in the rate of, assessment the tax or other governmental charge;,
(viid) any tax, assessment Taxes payable otherwise than by deduction or other governmental charge imposed withholding from payments on interest received by the notes,
(Ae) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation any Taxes with respect to such note presented for payment more than 30 days after the Company within date on which the meaning payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to holders, whichever occurs later, except to the extent that the holders of the Code;such note would have been entitled to such Additional Amounts on presenting such note for payment on any date during such 30 day period,
(viiif) any withholding or deduction payment on the Note to a Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3fiduciary, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary intermediary or partnership (including an entity treated as a partnership for tax purposes) or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, intermediary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note,
(g) any Taxes imposed on or in respect of Section 1471 through 1474 of the Code (“FATCA”) (or any amended or successor version of FATCA), any current or future regulations or official interpretations thereof, any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation of FATCA, the laws of any Relevant Jurisdiction implementing FATCA or any such intergovernmental agreement, any agreement between either the Company and the United States or any authority thereof entered into for FATCA purposes, and any agreements entered into pursuant to Section 1471(b)(1) of the Code,
(h) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant note to another paying agent, and
(i) any combination of the above. The limitations on our obligations to pay Additional Amounts stated in clause (c) above will not apply if (a) the provision of the certification, information, documentation or other evidence described in clause (c) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note, in such holder’s reasonable judgment, taking into account any relevant differences between U.S. and Mexican law, rule, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation and published administrative practice, or (b) with respect to taxes imposed by Mexico or any political subdivision or taxing authority thereof or therein, Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article) is in effect, unless the provision of the certification, information, documentation or other evidence described in the third bullet is expressly required by statute, rule or regulation in order to apply Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article), the Company, cannot obtain such certification, information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Article 166, Section II, subsection a), of the Mexican Income Tax Law (or such successor of such Article). In addition, such clause (c) does not require, and should not be construed as requiring, that any person, including any non-Mexican pension fund, tax-exempt organization, retirement fund or financial institution, of any nature, register with, or provide information to, the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) or the Mexican Tax Service Administration (Servicio de Administración Tributaria, or the SAT) to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax. Any reference in this Section 3.11, this Indenture, or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this Section 3.11. In the event that Additional Amounts actually paid with respect to the Notes pursuant to the this Section 3.11 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder or beneficial owner of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto, including taking any action for such refund to be repaid. The Company shall remit the full amount of any Mexican Taxes withheld to the applicable taxing authorities in accordance with applicable law. The Company shall also provide the trustee at least five Business Days prior to the date of any payment of Additional Amounts with documentation satisfactory to the trustee including an Officer’s Certificate stating the fact that Additional Amounts will be payable and amount so payable and following such payment such other documentation evidencing the payment of Mexican or other Taxes in respect of which the Company has paid any Additional Amounts. The Company shall provide copies of such documentation to the Holders or the relevant paying agent upon written request. In the event of any merger or other transaction described and permitted under Section 4.1, all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this section (other than the fourth and fifth paragraphs above) and under Section 5.1 hereof and under the heading "Redemption for Taxation Reasons" under section 5 on the reverse side of the Note shall be deemed to also include the relevant Qualified Merger Jurisdiction, the law or regulations of the relevant Qualified Merger Jurisdiction, and any taxing authority of the relevant Qualified Merger Jurisdiction, respectively. The Company agrees (i) to use commercially reasonable efforts to provide the Trustee or Paying Agent, at its reasonable request, any information to the extent it is in its possession to enable the Trustee or Paying Agent, as applicable, to determine whether any payments pursuant to the Indenture are subject to the withholding requirements described by FATCA, and (ii) that the Trustee or Paying Agent, as applicable shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with FATCA, for which the Trustee or Paying Agent shall not have any liability.
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. The Company Except as specifically provided by this Condition 9, TMCC shall not be required to make any payment in respect of the Notes with respect to any tax, assessment or other governmental charge (“Tax”) imposed by any government or a political subdivision or taxing authority thereof or therein. TMCC will, subject to certain limitations and exceptions (set forth below), pay to the Holder (includinga Noteholder, for purposes of this Section 4, the beneficial owner) of this Note Receiptholder or Couponholder who is a Non-U.S. Person Alien (as defined below) such additional amounts (“Additional Amounts”) as may be necessary so that every net payment of principal or interest in respect of and interest on this Note to such Holderthe Notes, Receipts or Coupons, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge Tax imposed upon such Holder Noteholder, Receiptholder or Couponholder, or by reason of the making of such payment, by the United States of America or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in this Note to be then due and payable (such amountsthe Notes, the “Additional Amounts”); providedReceipts or Coupons. However, however, that the Company TMCC shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any tax, assessment or other governmental charge that Tax which would not have been imposed but for (Ai) the existence of any present or former connection between such HolderNoteholder, Receiptholder or Couponholder or any beneficial owner of a Note, Receipt, or Coupon (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderNoteholder, Receiptholder, Couponholder or beneficial owner, if such Holder Noteholder, Receiptholder, Couponholder or beneficial owner is an estate, trust, partnership or corporation, ) and the United States States, including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of Americahaving had a permanent establishment therein, or (Bii) the presentation of this Note such Noteholder's, Receiptholder's, Couponholder's or beneficial owner's past or present status as a personal holding company, passive foreign investment company, foreign personal holding company, controlled foreign corporation or a private foundation (as those terms are defined for payment on United States tax purposes) or as a date more than 30 days after the later of (x) the date on corporation which such payment becomes due and payable and (y) the date on which payment thereof is duly provided foraccumulates earnings to avoid U.S. federal income tax;
(iib) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargeTax;
(iiic) any taxTax that would not have been so imposed but for the presentation of a Note, assessment Receipt or other governmental charge imposed by reason of Coupon for payment on a date more than 15 days after the date on which such ▇▇▇▇▇▇’s past payment became due and payable or present status as a passive foreign investment companythe date on which payment thereof is duly provided for, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxwhichever occurs later;
(ivd) any tax, assessment or other governmental charge Tax which is payable otherwise than by deduction or withholding from payment payments of principal of or interest on this Notein respect of the Notes, Receipts or Coupons;
(ve) any tax, assessment Tax imposed on interest received or other governmental charge beneficially owned by (i) a 10% shareholder of TMCC within the meaning of Internal Revenue Code Section 871(h)(3)(B) or Section 881(c)(3)(B) or (ii) a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(f) any Tax required to be withheld or deducted by any paying agent Paying Agent from any payment of principal of or interest on this Note in respect of any Note, Receipt or Coupon, if such payment can be made without such withholding or deduction by any other paying agentPaying Agent with respect to the Notes;
(vig) any tax, assessment or other governmental charge Tax which would not have been imposed but for the failure to comply with certification, information, documentation documentation, or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America the Noteholder, Receiptholder or Couponholder or of the Holder beneficial owner of this such Note, Receipt or Coupon, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental chargeTax;
(viih) any tax, assessment or other governmental charge Tax imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to a payment on a Note, Receipt or Coupon to any Noteholder, Receiptholder or Couponholder who is a fiduciary or partnership or other than the Company within the meaning sole beneficial owner of the CodeNote, Receipt or Coupon to the extent a beneficiary or settlor with respect to such fiduciary, a member of such partnership or a beneficial owner of the Note, Receipt or Coupon would not have been entitled to payment of the Additional Amounts, had such beneficiary, settlor, member or beneficial owner been the holder of the Note, Receipt or Coupon;
(viiii) any Tax required to be withheld or deducted by any Paying Agent from any payment of principal or interest in respect of any Note, Receipt or Coupon, where such withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixj) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (viig), (h) and (viiii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.above;
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (Notes such Additional Amounts as defined below) such additional amounts as may be are necessary so in order that every the net payment by the Company or a Paying Agent of the principal of and interest on this Note to such Holdera Holder who is not a United States person (as defined below), after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by of the United States of America or any a political subdivision or taxing authority thereof of or thereinin the United States, imposed by withholding with respect to the payment, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection between such Holder, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the Holder if such the Holder is an estate, trust, partnership or corporation, and the United States includingor a person holding a power over an estate or trust administered by a fiduciary holder, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being considered as:
(a) being or having been present or engaged in a trade or business in the United States or having had a permanent establishment in the United States;
(b) having a current or former relationship with the United States, including a relationship as a citizen or resident of the United States of America or treated as a resident thereof or States;
(c) being or having been engaged a foreign or domestic personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of the Company as defined in section 871(h)(3) of the United States Internal Revenue Code (the “Code”) or any successor provision; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into the ordinary course of its trade or business business;
(2) to any Holder that is not the sole beneficial owner of the Notes, or present in a portion of the Notes, or that is a fiduciary or partnership, but only to the extent that a beneficiary or settlor with respect to the fiduciary or a beneficial owner or member of the partnership would not have been entitled to the payment of an Additional Amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that is imposed or otherwise withheld solely by reason of a failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States Treasury Department or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from or reduction of such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a paying agent from the payment;
(5) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective (Bi) before the Holder acquires its interest in the Note or (ii) after the payment becomes due or is duly provided for, whichever occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;
(7) to any tax, assessment or other governmental charge any paying agent (which term may include the Company) must withhold from any payment of principal of or interest on any Note, if such payment can be made without such withholding by any other paying agent;
(8) to any tax, assessment or governmental charge that would not have been so imposed or withheld but for the presentation by the Holder of this a Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(ii9) any estate, inheritance, gift, sales, transfer, excise, personal property withholding or similar deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement); or
(10) in the case of any combination of the above items. The Notes are subject in all cases to any tax, assessment fiscal or other governmental charge;
(iii) law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 2.14, the Company will not be required to make any payment for any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation any government or a personal holding company with respect to the United States of America, political subdivision or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal taxing authority of or interest on this Note;
(v) in any tax, assessment government or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest political subdivision. The Company will not pay Additional Amounts on this Note if such payment can be made without withholding by any other paying agent;
(vii) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any where withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, 2003/48/ EC or any law implementing or complying with, or introduced in order to conform to, such that Directive; or
(ix) any combination of items (i), or (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary presented for payment by or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member on behalf of such partnership or a beneficial owner thereof, who would not have been entitled able to avoid the payment withholding or deduction by presenting the relevant global note to another Paying Agent in a Member State of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderEuropean Union.
Appears in 1 contract
Payment of Additional Amounts. The Company If any taxes, assessments or other governmental charges are imposed by the jurisdiction, other than the United States, where the Guarantor or a successor (a "Payor") is organized or otherwise considered to be a resident for tax purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on the Debentures, or, in each case, any political organization or governmental authority thereof or therein having the power to tax (the "Relevant Tax Jurisdiction") in respect of any payments under the Debentures, the Payor shall pay to each holder of a Debenture, to the Holder (includingextent it may lawfully do so, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, holder will be not be less than the amount provided specified in this Note such Debenture to be then due and payable (which such amounts, the “Additional Amounts”)holder is entitled; provided, however, that the Company Payor shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any tax, assessment or other governmental charge that which would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holderholder, if such Holder holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States Relevant Tax Jurisdiction including, without limitation, such Holder, holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in trade or business therein or present in the United States of America, having or having had a permanent establishment therein or (Bii) the presentation of this Note a Debenture (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later;
(iib) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(ivc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of of, premium, if any, or any interest on this Noteon, the Debentures;
(vd) any tax, assessment or other governmental charge required to be that is imposed or withheld by any paying agent from any payment reason of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure by the holder or the beneficial owner of the Debenture to comply with certification, a request of the Payor addressed to the holder to provide information, documentation documents or other reporting requirements evidence concerning the nationality, residence, residence or identity or connections with the United States of America of the Holder of this Note, if holder or such compliance beneficial owner which is required by statute a statute, treaty, regulation or by regulation administrative practice of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixe) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a)the above; nor shall any will Additional Amounts be paid with respect to any Holder payment of the principal of, or any premium or interest on, any Debenture to any holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of the Relevant Tax Jurisdiction to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the Holderholder of such Debenture. The Payor shall provide the Trustee with the official acknowledgment of the relevant tax authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes by the Payor. Copies of such documentation shall be made available to the holders of the Debentures or the paying agent, as applicable, upon request therefor.
SECTION 4. The Indenture, as supplemented and amended by this Supplemental Indenture and all other supplemental indentures thereto, is in all respects ratified and confirmed, and the Indenture, the Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument; provided, however, that this Supplemental Indenture shall apply only to the Notes and any Subsequent Debentures.
SECTION 5. If and to the extent any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Supplemental Indenture by any provision of the Trust Indenture Act of 1939, such required provision shall control.
SECTION 6. In case any provision in this Supplemental Indenture or in the Debentures of any series shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions (or of the other series of Debentures) shall not in any way be affected or impaired thereby.
SECTION 7. If the provisions of the Notes or any series of the Subsequent Debentures issued hereunder are inconsistent or conflict with the provisions of this Supplemental Indenture, the provisions of the Notes or the Subsequent Debentures of such series shall be controlling with respect to such series.
SECTION 8. This Supplemental Indenture and each Debenture of any series shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of the said State.
SECTION 9. Capitalized terms used in this Supplemental Indenture that are not otherwise defined herein that are defined in the Indenture shall remain as set forth therein.
SECTION 10. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original but such counterparts shall together constitute but one and the same instrument.
SECTION 11. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantor.
Appears in 1 contract
Sources: Third Supplemental Indenture (Cooper Industries LTD)
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial ownera) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so that every net payment All payments of principal of and interest premium, if any, and interest, if any, on this Note to such Holder, after all Securities shall be free and clear of and without withholding or deduction or withholding for or on account of any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever imposed upon or levied by or on behalf of the government of the United Kingdom, any territory of the United Kingdom or any authority or agency therein or thereof having the power to tax (collectively, “Taxes”), except to the extent such Holder Taxes are required to be withheld or deducted by law or by the United States interpretation or administration thereof. If the Company is so required to withhold or deduct any amount for or on account of America Taxes from any payment made in respect of the Securities, the Company shall pay such additional amounts (“Additional Amounts”) as may be necessary such that the net amount received by each Holder (including such Additional Amounts), after such withholding or any taxing authority thereof or thereindeduction, will shall not be less than the amount such Holder would have received if the Taxes had not been withheld or deducted; provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of no Additional Amounts for or on account ofwill be payable with respect to Taxes:
(i1) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holder, Holder or beneficial owner of the Securities (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderHolder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation, ) and the United States Kingdom or any political subdivision or territory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been present or engaged in trade or business therein or present in the United States of America, having or (B) the presentation of this Note for payment on having had a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forpermanent establishment therein;
(ii2) any that are estate, inheritance, gift, sales, transfer, excisepersonal property, personal property wealth or similar taxtaxes, assessment duties, assessments or other governmental chargecharges;
(iii3) any tax, assessment or payable other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments of principal of and premium, if any, or interest interest, if any, on this Notethe Securities;
(v4) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirements concerning requirement to the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if extent
(i) such compliance is required by statute applicable law or by regulation of the United States Treasury Department administrative practice or an applicable treaty as a precondition to relief exemption from, or exemption from reduction in, the rate of deduction or withholding of such taxTaxes, assessment and
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company or other governmental chargethe Guarantor, as the case may be, shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(vii5) any taxthat would not have been imposed but for the presentation of a Security (where presentation is required) for payment on a date more than thirty (30) days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Codewhichever occurred later;
(viii6) any withholding or deduction that is are imposed on a payment to an individual and is are required to be made pursuant to that any European Union Directive relating to on the taxation of savings adopted income relating to the proposal for a directive on June 3, 2003 the taxation of savings income published by the European Union’s Economic and Financial Affairs CouncilECOFIN Council on December 13, 2001 or otherwise implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Directivea directive;
(7) that would not have been imposed if presentation for payment of the relevant Securities had been made to a paying agent other than the paying agent to which the presentation was made; or
(ix) 8) any combination of items the foregoing clauses (i), 1) through (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a7); nor shall any Additional Amounts be paid with respect to any payment of principal of or premium, if any, or interest, if any, on any Securities to any such Holder who is a fiduciary or a partnership or a beneficial owner who is other than the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of the Security.
(b) All references in this Indenture, other than in Articles Twelve or Thirteen, to the payment of principal of and premium, if any, and or interest, if any, on or the net proceeds received on the sale or exchange of, any Securities shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.
(c) The Company shall maintain, in respect of Securities of each series outstanding, at least one paying agent located outside the United Kingdom. In the event that a paying agent with respect to Securities of a particular series is maintained in any member state of the European Union, the Company shall maintain a paying agent in at least one member state (other than the United Kingdom) that will not be obliged to withhold or deduct taxes pursuant to any law implementing European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income, provided there is at least one member state that does not require a paying agent to withhold or deduct pursuant to such directive.
(d) The obligation of the Company to pay Additional Amounts if and when due will survive the termination of this Indenture and the payment of all other amounts in respect of the Securities.
(e) If, as a result of any consolidation, merger, conversion, conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 11.01, the successor Person formed by such consolidation, merger, or conversion, or to which such conveyance, transfer or lease is made is not organized under the laws of the United Kingdom, such successor Person will pay Additional Amounts on the same basis set forth in this Section 4.05, except that references to the “United Kingdom” will be treated as references to both the United Kingdom and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).
Appears in 1 contract
Sources: Indenture (Aon Corp)
Payment of Additional Amounts. The All payments of principal and interest in respect of the Notes by the Company or a Paying Agent on the Company’s behalf will be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other similar governmental charges imposed or levied by the United States or any political subdivision or taxing authority of or in the United States (collectively, “Taxes”), unless such withholding or deduction is required by law. In the event such withholding or deduction for Taxes is required by law, subject to the limitations described below, the Company shall pay to the Holder (including, for purposes or on account of this Section 4, the any beneficial owner) owner of this Note Notes who is not a Non-U.S. Person (as defined below) such additional amounts (“Additional Amounts”) as may be necessary so to ensure that every the net payment of principal of and interest on this Note to amount received by such Holderbeneficial owner, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or thereinTaxes, will not be less than equal to the amount provided such person would have received in this Note to be then due and payable (the absence of such amounts, the “Additional Amounts”)withholding or deduction; provided, however, that the Company shall not be required to make any payment of no Additional Amounts shall be payable for or on account of:
(ia) any tax, assessment or other governmental charge that Taxes which would not have been imposed so imposed, withheld or deducted but for for:
(Ai) the existence of any present or former connection between such Holder, the holder or beneficial owner (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder or other equity owner of, or possessor of a person having a power over, such Holderholder or beneficial owner, if such Holder holder or beneficial owner is an estate, a trust, partnership a limited liability company, a partnership, a corporation or corporation, other entity or between a person related to the holder or beneficial owner) and the United States States, including, without limitation, such Holder, holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, other equity owner or person having such a power) being or having been a citizen or resident of the United States of America or treated as a resident thereof or of the United States, being or having been engaged in a trade or business in the United States, being or having been present in the United States of AmericaStates, or (B) having or having had a permanent establishment in the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forUnited States;
(ii) the failure of the holder, the beneficial owner or any estateother person to comply with certification, inheritanceidentification or information reporting requirements concerning the nationality, giftresidence, salesidentity or connection with the United States of the holder or beneficial owner of the notes, transferif compliance is required by statute, excise, personal property by regulation of the United States or similar tax, assessment any taxing authority therein or other governmental charge;
(iii) any by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge (including, but not limited to, the requirement to provide Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, or any subsequent versions thereof or successor thereto, and including, without limitation, any documentation requirement under an applicable income tax treaty); or
(b) any Taxes imposed by reason of such ▇▇▇▇▇▇the holder’s past or beneficial owner’s present or former status as a foreign personal holding company, or personal holding company, with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States, as a foreign tax exempt organization with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States federal income tax;
(ivc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge Taxes which would not have been imposed imposed, withheld or deducted but for the failure to comply with certification, information, documentation holder or other reporting requirements concerning the nationality, residence, identity beneficial owner being or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
having been (vii) any tax, assessment or other governmental charge imposed on interest received by (Ax) a ‘‘10% shareholder (-percent shareholder’’ of ours as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) or any successor provision, and the regulations that may be promulgated thereunder) of the Company or (By) a controlled foreign corporation with respect that is related to the Company us within the meaning of Section 864(d)(4) of the CodeCode or (z) a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(viiid) any Taxes which would not have been imposed, withheld or deducted but for the presentation by the holder or beneficial owner of such note for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment of the Note is duly provided for, whichever occurs later;
(e) any estate, inheritance, gift, sales, excise, transfer, personal property, wealth or similar Taxes;
(f) any Taxes which are payable otherwise than by withholding or deduction from a payment on such Note;
(g) any Taxes which are imposed, withheld or deducted with respect to, or payable by, a Holder that is imposed on not the beneficial owner of the Note, or a portion of the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or member of such partnership, limited liability company or similar entity would not have been entitled to the payment to of an individual and is Additional Amount had such beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of the payment;
(h) any Taxes required to be withheld or deducted by any Paying Agent from any payment on any Note, if such payment can be made without such withholding or deduction by at least one other Paying Agent;
(i) any Taxes required to be withheld or deducted where such withholding or deduction is imposed pursuant to that European Union Council Directive relating to 2003/48/EC on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such European Council Directive;
(j) any Taxes imposed, withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(k) any Taxes that would not have been imposed, withheld or deducted but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the applicable payment becomes due or is duly provided for, whichever occurs later; or
(ixl) any combination of items (a), (b), (c), (d), (e), (f), (g)(h), (i), (ii), (iii), (iv), (v), (vi), (viij) and (viii) in this Section 4(ak); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as Holders all Additional Amounts that may be necessary so that every net payment of interest, principal of and interest on this Note to such Holder, or other amounts due under the Notes will not be less than the amount provided for in the Notes. “Net payment” in the preceding sentence shall mean the amount the Company or the Paying Agent pays the Holder after deduction deducting or withholding an amount for or on account of any present or future taxtaxes, assessment duties, assessments or other governmental charge charges (“Taxes”) imposed upon such Holder with respect to that payment by the United States of America a Mexican taxing authority, or any political subdivision or taxing authority thereof or thereintherein (a “Relevant Jurisdiction”) (a “Net Payment”). However, the Company will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of pay Additional Amounts to any holder for or on account ofof any of the following:
(ia) any tax, assessment Taxes imposed because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holder, the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holderover the relevant holder or beneficial owner, if such Holder the relevant holder or beneficial owner is an estate, nominee, trust, partnership partnership, limited liability company or corporation, ) of the Note and the United States includingRelevant Jurisdiction, without limitation, including such Holder, Holder or such beneficial owner (or a fiduciary, settlor, beneficiary, membermember or shareholder of, shareholder or possessor, possessor of power over the relevant holder or beneficial owner) (i) being or having been a citizen or resident of thereof for tax purposes, (ii) maintaining or having maintained an office, permanent establishment, or branch, in all cases subject to taxation therein to which such payments on the United States of America Notes are attributable, or treated as a resident thereof or (iii) being or having been present or engaged in a trade or business therein (other than the receipt of payments or present in the United States ownership or holding of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Note),
(iib) any estate, inheritance, gift, sales, transferuse, excise, transfer, personal property or similar tax, assessment or other governmental charge;
(iii) any taxduty, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;Notes,
(ivc) any tax, assessment Taxes imposed because the Holder or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for person having a beneficial interest in the failure Notes fails to comply with any certification, information, documentation or other reporting requirements requirement concerning the nationality, residenceresidence for tax purposes, certification or identity or connections with the United States of America of the Holder or any beneficial owner of this Notethe Note with the Relevant Jurisdiction, if such compliance is required by statute statute, rule, regulation, officially published administrative practice of the taxing jurisdiction or by regulation of the United States Treasury Department an applicable income tax treaty, which is in effect, to which Mexico is a party, as a precondition to relief exemption from, or exemption from such taxreduction in the rate of, assessment the tax or other governmental charge;,
(viid) any tax, assessment Taxes payable otherwise than by deduction or other governmental charge imposed withholding from payments on interest received by the notes,
(Ae) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation any Taxes with respect to such note presented for payment more than 30 days after the Company within date on which the meaning payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to holders, whichever occurs later, except to the extent that the holders of the Code;such note would have been entitled to such Additional Amounts on presenting such note for payment on any date during such 30 day period,
(viiif) any withholding or deduction payment on the Note to a Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3fiduciary, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary intermediary or partnership (including an entity treated as a partnership for tax purposes) or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, intermediary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note,
(g) any Taxes imposed on or in respect of Section 1471 through 1474 of the Code (“FATCA”) (or any amended or successor version of FATCA), any current or future regulations or official interpretations thereof, any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation of FATCA, the laws of any Relevant Jurisdiction implementing FATCA or any such intergovernmental agreement, any agreement between either the Company and the United States or any authority thereof entered into for FATCA purposes, and any agreements entered into pursuant to Section 1471(b)(1) of the Code,
(h) any Taxes imposed in connection with a Note presented for payment by or on behalf of a Holder or beneficial owner who would have been able to avoid such Tax by presenting the relevant note to another paying agent, and
(i) any combination of the above. The limitations on our obligations to pay Additional Amounts stated in clause (c) above will not apply if (a) the provision of the certification, information, documentation or other evidence described in clause (c) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note, in such holder’s reasonable judgment, taking into account any relevant differences between U.S. and Mexican law, rule, regulation or administrative practice, than comparable information or other reporting requirements imposed under U.S. tax law (including the United States-Mexico income tax treaty), regulation and published administrative practice, or (b) with respect to taxes imposed by Mexico or any political subdivision or taxing authority thereof or therein, Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article) is in effect, unless the provision of the certification, information, documentation or other evidence described in the third bullet is expressly required by statute, rule or regulation in order to apply Article 166, Section II, subsection a), of the Mexican Income Tax Law (or a substantially similar successor of such Article), the Company, cannot obtain such certification, information, documentation or other evidence on its own through reasonable diligence and the Company otherwise would meet the requirements for application of Article 166, Section II, subsection a), of the Mexican Income Tax Law (or such successor of such Article). In addition, such clause (c) does not require, and should not be construed as requiring, that any person, including any non-Mexican pension fund, retirement fund or financial institution, of any nature, register with, or provide information to, the Ministry of Finance and Public Credit or the Mexican Tax Service Administration (Servicio de Administración Tributaria, or the SAT) to establish eligibility for an exemption from, or a reduction of, Mexican withholding tax. Any reference in this Section 3.11, this Indenture, or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Company will be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this Section 3.11. In the event that Additional Amounts actually paid with respect to the Notes pursuant to the this Section 3.11 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to us. However, by making such assignment, the holder makes no representation or warranty that the Company will be entitled to receive such claim for a refund or credit and Incurs no other obligation with respect thereto, including taking any action for such refund to be repaid. The Company shall remit the full amount of any Mexican Taxes withheld to the applicable taxing authorities in accordance with applicable law. The Company shall also provide the trustee at least five Business Days prior to the date of any payment of Additional Amounts with documentation satisfactory to the trustee including an Officer’s Certificate stating the fact that Additional Amounts will be payable and amount so payable and following such payment such other documentation evidencing the payment of Mexican or other Taxes in respect of which the Company has paid any Additional Amounts. The Company shall provide copies of such documentation to the Holders or the relevant paying agent upon written request. In the event of any merger or other transaction described and permitted under Section 4.1, all references to Mexico, Mexican law or regulations, and Mexican taxing authorities under this section (other than the fourth and fifth paragraphs above) and under Section 5.1 hereof and under the heading "Redemption for Taxation Reasons" under section 5 on the reverse side of the Note shall be deemed to also include the relevant Qualified Merger Jurisdiction, the law or regulations of the relevant Qualified Merger Jurisdiction, and any taxing authority of the relevant Qualified Merger Jurisdiction, respectively.
Appears in 1 contract
Sources: Indenture
Payment of Additional Amounts. The If the Securities of a particular series provide for payment of Additional Amounts, all payments of principal and interest (including payments of discount and premium, if any) in respect of the Securities of such series shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed, levied, collected, withheld or assessed by or within the United Kingdom or by or within any political subdivision thereof or any authority therein or thereof having power to tax ("United Kingdom Taxes"), unless such withholding or deduction is required by law. In the event of any such withholding or deduction, the Company shall pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) relevant Holders such additional amounts ("Additional Amounts") as may be necessary so that every net will result in the payment of principal of and interest on this Note to such Holder, after deduction or withholding for or on account Holders of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, will not be less than the amount provided that would otherwise have been receivable by such Holders in this Note to be then due and payable (the absence of such amountswithholding or deduction, the “Additional Amounts”); provided, however, except that the Company shall not be required to make any payment of no such Additional Amounts for or on account ofshall be payable:
(ia) any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence of any present or former connection between such Holderto, or between to a Person on behalf of, a Holder who is liable for such United Kingdom Taxes in respect of Securities by reason of such Holder (or a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, over such Holder, if such Holder is an estate, trust, partnership or corporation, and ) having some connection with the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, Kingdom (including but not limited to being or having been a citizen or resident of the United States of America or treated as national or domiciliary of, or carrying on a resident thereof or being or having been engaged in trade or business or maintaining a permanent establishment in, or being physically present in in, the United States Kingdom) other than the mere holding of Americaa Security or the receipt of principal and interest in respect thereof;
(b) to, or to a Person on behalf of, a Holder who presents a Security (Bwhere presentation is required) the presentation of this Note for payment on a date more than 30 days after the later Relevant Date except to the extent that such Holder would have been entitled to such Additional Amounts on presenting such Security for payment on the last day of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forperiod of 30 days;
(iic) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in the United Kingdom;
(d) to, or to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction by making a declaration of non-residence or similar claim for exemption to the relevant tax authority or who fails to comply with any other certification, filing, identification, information or other reporting requirements if such is a precondition to exemption from, or the reduction in the rate of, deduction or withholding of United Kingdom Taxes;
(e) any estate, inheritance, gift, sales, transfer, excise, transfer or personal property taxes or any similar taxtaxes, assessment duties, assessments or other governmental charge;charges; or
(iiif) to, or to a Person on behalf of, a Holder in respect of any taxdefinitive Registered Security issued pursuant to an Optional Definitive Security Request. Such Additional Amounts will also not be payable where, assessment had the beneficial owner of the Security (or other governmental charge imposed any interest therein) been the Holder of the Security, he would not have been entitled to payment of Additional Amounts by reason of any one or more of clauses (a) through (f) above. If the Company shall determine that Additional Amounts will not be payable because of the immediately preceding sentence, the Company will inform such ▇▇▇▇▇▇’s past Holder promptly after making such determination setting forth the reason(s) therefor. Reference to principal, interest, discount or present status premium in respect of the Securities shall be deemed also to refer to any Additional Amounts which may be payable as a passive foreign investment company, a controlled foreign corporation set forth in this Indenture or a personal holding company in the Securities. At least 10 Business Days prior to the first Interest Payment Date (and at least 10 Business Days prior to each succeeding Interest Payment Date if there has been any change with respect to the United States of America, or as a corporation which accumulates earnings matters set forth in the below-mentioned Officers' Certificate) the Company will furnish to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment the Trustee and the Paying Agents an Officers' Certificate instructing the Trustee and the Paying Agents whether payments of principal of or interest on this Note;
(v) the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any taxUnited Kingdom Taxes. If any such deduction or withholding shall be required, assessment or other governmental charge prior to such Interest Payment Date the Company will furnish the Trustee and the Paying Agents with an Officers' Certificate which specifies the amount, if any, required to be withheld on such payment to Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, and to hold the Trustee harmless against, any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on the Trustee's part, arising out of or in connection with actions taken or omitted by the Trustee in reliance on any paying agent from Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 1009 to be provided to the Trustee and any Paying Agent shall be deemed to be duly provided if telecopied to the Trustee and such Paying Agent. The Company shall furnish to the Trustee the official receipts (or a certified copy of the official receipts) evidencing payment of principal United Kingdom Taxes. Copies of or interest on this Note if such payment can receipts shall be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for available to the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America Holders of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderSecurities upon request.
Appears in 1 contract
Payment of Additional Amounts. The Company If any taxes, assessments or other governmental charges are imposed by the jurisdiction, other than the United States, where C▇▇▇▇▇ Parent or a successor (a “Payor”) is organized or otherwise considered to be a resident for tax purposes, any jurisdiction, other than the United States, from or through which the Payor makes a payment on the Debentures, or, in each case, any political organization or governmental authority thereof or therein having the power to tax (the “Relevant Tax Jurisdiction”) in respect of any payments under the Debentures, the Payor shall pay to each holder of a Debenture, to the Holder (includingextent it may lawfully do so, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts (“Additional Amounts”) as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such Holder, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or therein, holder will be not be less than the amount provided specified in this Note such Debenture to be then due and payable (which such amounts, the “Additional Amounts”)holder is entitled; provided, however, that the Company Payor shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any tax, assessment or other governmental charge that which would not have been imposed but for (Ai) the existence of any present or former connection between such Holder, holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holderholder, if such Holder holder is an estate, trust, partnership partnership, limited liability company or corporation, ) and the United States Relevant Tax Jurisdiction including, without limitation, such Holder, holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in a trade or business therein or present in the United States of America, having or having had a permanent establishment therein or (Bii) the presentation of this Note a Debenture (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later;
(iib) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(ivc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of of, premium, if any, or any interest on this Noteon, the Debentures;
(vd) any tax, assessment or other governmental charge required to be that is imposed or withheld by any paying agent from any payment reason of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure by the holder or the beneficial owner of the Debenture to comply with certification, a request of the Payor addressed to the holder to provide information, documentation documents or other reporting requirements evidence concerning the nationality, residence, residence or identity or connections with the United States of America of the Holder of this Note, if holder or such compliance beneficial owner which is required by statute a statute, treaty, regulation or by regulation administrative practice of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay to the Holder (including, for purposes of this Section 4, any of the beneficial owner) of this Note Securities who is a Nonnon-U.S. Person (as defined below) United States person such additional amounts (“Additional Amounts”) as may be necessary so in order that every net payment in respect of the principal of and interest or interest, if any, on this Note to such HolderSecurities, after deduction or withholding by the Company or any Paying Agent for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in this Note such Securities to be then due and payable (before any such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts deduction or withholding for or on account ofof any such tax, assessment or governmental charge. The foregoing obligation to pay such Additional Amounts shall not apply to:
(ia) any tax, assessment or other governmental charge that which would not have been so imposed but for for:
(Ai) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor holder of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, ) and the United States States, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder of, or possessor, holder of a power) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in a trade or business therein or being or having been present in the United States of Americatherein or having or having had a permanent establishment therein, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;or
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past present or present former status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the or foreign personal holding company or controlled foreign corporation for United States of America, federal income tax purposes or as a corporation which accumulates earnings to avoid United States federal income tax;
(ivb) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of such Securities for payment on a date more than 10 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer, personal property or excise tax or any similar tax, assessment or governmental charge;
(d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment payments in respect of principal of or interest interest, if any, on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental chargeSecurities;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 1 contract
Sources: Supplemental Indenture (Kellanova)
Payment of Additional Amounts. (a) The Company shall pay to the Holder (including, for purposes each beneficial owner of this Section 4, the beneficial owner) of this Note any Securities who is a Non-U.S. Person (as defined below) such additional amounts (“Additional Amounts”) as may be necessary so that every net payment of the principal of of, and interest on this Note to such Holderbeneficial owner’s Securities, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder that beneficial owner by the United States of America or any political subdivision or taxing authority thereof or thereintherein (including any tax, assessment or other governmental charge imposed on the Additional Amounts so paid), will not be less than the amount provided in this Note such beneficial owner’s Securities to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the payable. The Company shall not be required to make any payment of Additional Amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection (other than a connection arising solely from the ownership of those Securities or the receipt of payments or enforcement of rights in respect of those Securities) between such Holderthat beneficial owner, or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holderthat beneficial owner, if such Holder that beneficial owner is an estate, trust, partnership or corporation, and the United States includingStates, without limitation, such Holderincluding that beneficial owner, or such that fiduciary, settlor, beneficiary, member, shareholder or possessor, (1) being or having been a citizen or resident of the United States of America or treated as a resident thereof or of the United States, (2) being or having been present in, or engaged in a trade or business in, the United States, (3) being treated as having been present in, or present engaged in a trade or business in, the United States, or (4) having or having had a permanent establishment in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forStates;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇that beneficial owner’s past or present status as a passive foreign investment personal holding company, a controlled foreign corporation corporation, a passive foreign investment company or a personal holding company foreign private foundation or other foreign tax-exempt organization with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States U.S. federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or of, premium, if any, on, interest on this Noteor the redemption price for such beneficial owner’s Securities;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or of, premium, if any, on, interest on this Note or the redemption price for any Securities if such that payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of a beneficial owner or any Holder of Securities to comply (to the extent that it is legally able to do so) with a request to satisfy any applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America the beneficial owner or any Holder of the Holder of this NoteSecurities, if such compliance is required by statute or by regulation of the United States U.S. Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) withholding required pursuant to Sections 1471 through 1474 of the United States U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any agreement (including any intergovernmental agreement) entered into in connection therewith;
(viii) any tax, assessment or other governmental charge that is imposed or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(ix) any tax, assessment or other governmental charge imposed on interest received by (1) a 10% shareholder (as defined in Section 871(h)(3)(B) of the Code and the regulations that may be promulgated thereunder) of the Company or Company, (B2) a controlled foreign corporation with respect that is related to the Company within the meaning of Section 864(d)(4) of the Code or (3) a bank receiving interest described in Section 881(c)(3)(A) of the Code;
(viiix) any withholding tax, assessment or deduction governmental charge that is would not have been so imposed or withheld but for the presentation by the Holder of a Security for payment on a date more than 30 days after the date on which such payment to an individual became due and payable or the date on which payment thereof is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3duly provided for, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directivewhoever occurs later; or
(ixxi) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) ), (viii), (ix), and (viiix) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership above.
(b) In addition, to the extent described below, the Company will not pay Additional Amounts to a beneficial owner of a Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity. This exception will apply to a beneficial owner of a Security that is a fiduciary, partnership, limited liability company or other fiscally transparent entity only to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofor member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of such an Additional Amounts Amount had such the beneficiary, settlor, member or beneficial owner been or member received directly its beneficial or distributive share of the Holderpayment subject to the tax, assessment or other governmental charge as to which withholding or another deduction occurs.
(c) As used in this Paragraph 4, the term “beneficial owner” includes any person holding a Security on behalf of or for the account of a beneficial owner and the term “Non-U.S. Person” means a person that is not a United States Person. The term “United States Person” means an individual citizen or resident of the United States, a corporation or partnership created or organized in or under the laws of the United States or any political subdivision thereof, an estate the income of which is subject to United States federal income taxation regardless of its source, a trust subject to the primary supervision of a court within the United States and the control of one or more United States persons as described in Section 7701(a)(30) of the Code, or a trust that existed on August 20, 1996, and elected to continue its treatment as a domestic trust.
Appears in 1 contract
Sources: Indenture (Kimberly Clark Corp)
Payment of Additional Amounts. (a) The Company shall Company, and each Subsidiary Guarantor, shall, subject to the exceptions set forth below, pay to Holders of the Holder (including, for purposes of this Section 4, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such Notes additional amounts (“Additional Amounts”) as may be necessary so that every net payment of interest, premium upon redemption of the Notes or principal of and interest on this Note to such Holderthe Holders shall not be less than the amount provided for in the Notes. The term “net payment” means the amount that the Company, any Subsidiary Guarantor or a Paying Agent pays any Holder after deduction deducting or withholding an amount for or on account of any present or future taxes, duties, assessments or other governmental charges imposed with respect to that payment by the British Virgin Islands or any jurisdiction where the Company or any Subsidiary Guarantor is incorporated, resident or doing business for tax purposes or from or through which any payment in respect of the Notes is made by the paying agent or the Company, or any political subdivision thereof (a “Relevant Jurisdiction”), or by any taxing authority of a Relevant Jurisdiction.
(b) The Company, and each Subsidiary Guarantor, shall not pay Additional Amounts to any Holder for or solely on account of any of the following:
(i) any present or future taxes, duties, assessments or other governmental charges that would not have been imposed but for any present or former connection between the Holder (or a fiduciary, settlor, beneficiary, member or shareholder of the Holder) and the Relevant Jurisdiction (other than the mere receipt of a payment or the ownership or holding of a Note);
(ii) any estate, inheritance, capital gains, excise, personal property tax, sales, transfer, gift or similar tax, assessment or other governmental charge imposed upon such Holder by with respect to the United States of America or any taxing authority thereof or therein, will not be less than the amount provided in this Note to be then due and payable (such amounts, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts for or on account of:Notes;
(iiii) any taxtaxes, assessment duties, assessments or other governmental charge charges that would not have been imposed but for the failure of the Holder or any other Person to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Relevant Jurisdiction, for tax purposes, of the Holder or any beneficial owner of the Note if compliance is required by law, regulation or by an applicable income tax treaty to which the Relevant Jurisdiction is a party, as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge (Aincluding withholding taxes payable on interest payments under the Notes) and the existence Company has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or information;
(iv) any tax, duty, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on or in respect of the Notes;
(v) any present or former connection between such Holderfuture taxes, duties, assessments or between other governmental charges with respect to a fiduciaryNote presented for payment, settlorwhere presentation is required, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such the payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later, except to the extent that the Holder of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(vvi) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of the principal of of, or premium or interest on this Note any Note, if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but results from the presentation of any Note for payment and the failure to comply with certification, information, documentation payment can be made without such withholding or other reporting requirements concerning deduction by the nationality, residence, identity or connections with the United States of America presentation of the Holder of this Note, if such compliance is required Note for payment by statute or by regulation at least one other reasonably available paying agent of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental chargeCompany;
(vii) any tax, assessment or other governmental charge imposed payment on interest received by (A) the Note to a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to fiduciary, a partnership, a limited liability company or a person other than the taxation sole beneficial owner of savings adopted on June 3any such payment, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such partnership a partnership, an interestholder in such a limited liability company or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note; or
(viii) in the case of any combination of the items listed above.
(c) The Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of taxes in respect of which the Company has paid any Additional Amount. Copies of such documentation shall be reasonably available to the Holders of the Notes or the relevant paying agent upon request.
Appears in 1 contract
Payment of Additional Amounts. The (a) If any deduction or withholding for any present or future taxes, assessments or other governmental charges of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax shall at any time be required by such jurisdiction (or any such political subdivision or taxing authority) in respect of any amounts to be paid by the Company or a successor corporation under the Notes, the Company or a successor corporation will pay to the each Holder (including, for purposes of this Section 4, the beneficial owner) of this a Note who is a Non-U.S. Person (as defined below) additional interest such additional amounts ("Additional Amounts") as may be necessary so in order that every the net payment of principal of and interest on this Note amounts paid to such HolderHolder of such Note who, after deduction or withholding for or on account of with respect to any present or future such tax, assessment or other governmental charge imposed upon charge, is not resident in, or a citizen of, such Holder by the United States of America jurisdiction, after such deduction or any taxing authority thereof or thereinwithholding, will shall be not be less than the amount provided specified in this such Note to be then due and payable (which such amountsHolder is entitled; PROVIDED, HOWEVER, the “Additional Amounts”); provided, however, that the Company or a successor corporation shall not be required to make any payment of Additional Amounts for or on account of:
(i) any Any tax, assessment or other governmental charge that which would not have been imposed but for (Aa) the existence of any present or former connection between such Holder, Holder (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, over such Holder, if such Holder is an estate, trusttrust partnership, partnership limited liability company or corporation, ) and the United States taxing jurisdiction or any political subdivision or territory or possession thereof or are subject to its jurisdiction, including, without limitation, such Holder, Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, ) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bb) the presentation of this a Note (where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and or (y) the date on which payment thereof is duly provided for, whichever occurs later or (c) the presentation of a Note for payment in Bermuda or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere;
(ii) any Any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any Any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of of, premium, if any, or any interest on this Noteon, the Notes;
(viv) any Any tax, assessment or other governmental charge required to be that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Note to comply with a request of the Company addressed to the Holder (a) to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner or (b) to make and deliver any paying agent from any payment declaration or other similar claim (other than a claim for refund of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any a tax, assessment or other governmental charge which would not have been withheld by the Company) or satisfy any information or reporting requirements, which, in the case of (a) or (b), is required or imposed but for the failure to comply with certificationby a statute, informationtreaty, documentation regulation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America administrative practice of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department taxing jurisdiction as a precondition to relief or exemption from all or part of such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixv) any Any combination of items items. (i), (ii), (iii), (iv), (v), (vi), (vii) and (viiiiv) in this Section 4(a)above; nor shall any Additional Amounts be paid with respect to any payment of the principal of, or any premium or interest on, any Note to any Holder who is a fiduciary or partnership or limited liability company or other than the sole beneficial owner of such payment to the extent that such payment would be required by the laws of (x) Bermuda or any political subdivision or governmental authority thereof or therein having power to tax, (y) any jurisdiction, other than the United States, from or through which payment on the Notes is made by the Company or a successor corporation, or its paying agent in its capacity as such or any political subdivision or governmental authority thereof or therein having the power to tax or (z) any other jurisdiction, other than the United States, in which the Company or a successor corporation is organized, or any political subdivision or governmental authority thereof or therein having the power to tax to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, who would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner it been the HolderHolder of such Note.
(b) The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, a certified copy thereof) evidencing the payment of the withholding taxes, if any, by the Company. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(c) The Company shall pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery or registration of the Notes or any other document or instrument referred to herein or in the Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Bermuda.
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay will, subject to the Holder exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts (including, for purposes “Additional Amounts”) as are necessary in order that the net payment by the Company or the Paying Agent of this Section 4, any payments under the beneficial owner) of this Note Notes to a holder who is not a Non-U.S. Person United States person (as defined below) such additional amounts as may be necessary so that every net payment of principal of and interest on this Note to such Holder), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge (“Tax”) imposed upon such Holder by the United States of America or any a taxing authority thereof or thereinin the United States, will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay Additional Amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(ia) to any tax, assessment Tax that is imposed by reason of the holder (or other governmental charge that would not have been imposed but the beneficial owner for (A) whose benefit such holder holds the existence of any present or former connection between such HolderNotes), or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such Holder, the holder if such Holder the holder is an estate, trust, partnership or corporation, and or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(1) being or having been engaged in a trade or business in the United States includingor having or having had a permanent establishment in the United States;
(2) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, without limitationthe receipt of any payment or the enforcement of any rights hereunder), such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, including being or having been a citizen or resident of the United States of America or treated as a resident thereof or States;
(3) being or having been engaged a personal holding company, a passive foreign investment company or a controlled foreign corporation for U.S. federal income tax purposes or a corporation that has accumulated earnings to avoid U.S. federal income tax;
(4) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the Code;
(5) being a controlled foreign corporation that is related to the Company within the meaning of Section 864(d)(4) of the Code; or
(6) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business business;
(b) to any holder that is not the sole beneficial owner of the Notes, or present in a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the holder, a beneficiary or settlor with respect to the fiduciary or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(c) to any Tax that would not have been imposed but for the failure of the holder or the beneficial owner of the Notes to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of Americathe Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such Tax (including the requirement to provide Internal Revenue Service Forms W-8BEN, W-8BEN-E, W-8ECI, W-9 or any subsequent versions thereof or successor thereto, and any documentation requirement under an applicable income tax treaty), but only to the extent such holder or beneficial owner is legally eligible to do so;
(d) to any Tax that is imposed otherwise than by withholding from the payment;
(e) any U.S. federal backup withholding under Section 3406 of the Code, or any similar provision of state or local law;
(Bf) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property or similar Tax;
(g) to any Tax required to be withheld by any Paying Agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by at least one other Paying Agent;
(h) to any Tax that would not have been imposed but for the presentation by the Holder of this Note any Note, where presentation is required, for payment on a date more than 30 days after the later of (x) the date on which such payment becomes became due and payable and (y) or the date on which payment thereof is duly provided for, whichever occurs later;
(iii) to any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge Tax imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America under Sections 1471 through 1474 of the Holder of this NoteCode (or any amended or successor provisions), if such compliance is required by statute any current or by regulation of the United States Treasury Department as a precondition future regulations or official interpretations thereof, any agreement entered into pursuant to relief or exemption from such tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code of 1986Code, as amended (the “Code”)or any fiscal or regulatory legislation, and the regulations that may be promulgated thereunder) of the Company rules or (B) a controlled foreign corporation with respect practices adopted pursuant to the Company within the meaning any intergovernmental agreement implementing such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixj) in the case of any combination of items (a) through (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderabove.
Appears in 1 contract
Payment of Additional Amounts. The All payments of principal and interest in respect of the Notes by the Company or a Paying Agent on the Company’s behalf will be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other similar governmental charges imposed or levied by the United States or any political subdivision or taxing authority of or in the United States (collectively, “Taxes”), unless such withholding or deduction is required by law. In the event such withholding or deduction for Taxes is required by law, subject to the limitations described below, the Company shall pay to the Holder (including, for purposes or on account of this Section 4, the any beneficial owner) owner of this Note Notes who is not a Non-U.S. Person (as defined below) such additional amounts (“Additional Amounts”) as may be necessary so to ensure that every the net payment of principal of and interest on this Note to amount received by such Holderbeneficial owner, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or thereinTaxes, will not be less than equal to the amount provided such person would have received in this Note to be then due and payable (the absence of such amounts, the “Additional Amounts”)withholding or deduction; provided, however, that the Company shall not be required to make any payment of no Additional Amounts shall be payable for or on account of:
(ia) any tax, assessment or other governmental charge that Taxes which would not have been imposed so imposed, withheld or deducted but for for:
(Ai) the existence of any present or former connection between such Holder, the holder or beneficial owner (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder or other equity owner of, or possessor of a person having a power over, such Holderholder or beneficial owner, if such Holder holder or beneficial owner is an estate, a trust, partnership a limited liability company, a partnership, a corporation or corporation, other entity or between a person related to the holder or beneficial owner) and the United States States, including, without limitation, such Holder, holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, other equity owner or person having such a power) being or having been a citizen or resident of the United States of America or treated as a resident thereof or of the United States, being or having been engaged in a trade or business in the United States, being or having been present in the United States of AmericaStates, or (B) having or having had a permanent establishment in the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forUnited States;
(ii) the failure of the holder, the beneficial owner or any estateother person to comply with certification, inheritanceidentification or information reporting requirements concerning the nationality, giftresidence, salesidentity or connection with the United States of the holder or beneficial owner of the notes, transferif compliance is required by statute, excise, personal property by regulation of the United States or similar tax, assessment any taxing authority therein or other governmental charge;
(iii) any by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge (including, but not limited to, the requirement to provide Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, or any subsequent versions thereof or successor thereto, and including, without limitation, any documentation requirement under an applicable income tax treaty); or
(b) any Taxes imposed by reason of such ▇▇▇▇▇▇the holder’s past or beneficial owner’s present or former status as a foreign personal holding company, or personal holding company, with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States, as a foreign tax exempt organization with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States federal income tax;
(ivc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge Taxes which would not have been imposed imposed, withheld or deducted but for the failure to comply with certification, information, documentation holder or other reporting requirements concerning the nationality, residence, identity beneficial owner being or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
having been (vii) any tax, assessment or other governmental charge imposed on interest received by (Ax) a “10% shareholder (-percent shareholder” of ours as defined in Section 871(h)(3)(B871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) or any successor provision, and the regulations that may be promulgated thereunder) of the Company or (By) a controlled foreign corporation with respect that is related to the Company us within the meaning of Section 864(d)(4) of the CodeCode or (z) a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(viiid) any Taxes which would not have been imposed, withheld or deducted but for the presentation by the holder or beneficial owner of such note for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment of the Note is duly provided for, whichever occurs later;
(e) any estate, inheritance, gift, sales, excise, transfer, personal property, wealth or similar Taxes;
(f) any Taxes which are payable otherwise than by withholding or deduction from a payment on such Note;
(g) any Taxes which are imposed, withheld or deducted with respect to, or payable by, a Holder that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to not the taxation beneficial owner of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs CouncilNote, or any law implementing or complying witha portion of the Note, or introduced in order to conform to, such Directive; or
(ix) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who that is a fiduciary fiduciary, partnership, limited liability company or partnership other similar entity, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or a member of such partnership partnership, limited liability company or a beneficial owner thereof, similar entity would not have been entitled to the payment of such an Additional Amounts Amount had such beneficiarybeneficial owner, settlor, beneficiary or member received directly its beneficial or beneficial owner distributive share of the payment;
(h) any Taxes required to be withheld or deducted by any Paying Agent from any payment on any Note, if such payment can be made without such withholding or deduction by at least one other Paying Agent;
(i) any Taxes imposed, withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(j) any Taxes that would not have been imposed, withheld or deducted but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the Holderapplicable payment becomes due or is duly provided for, whichever occurs later; or
(k) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i) and (j).
Appears in 1 contract
Payment of Additional Amounts. The All payments of principal and interest in respect of the Notes by the Company or a Paying Agent on the Company’s behalf will be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, duties, assessments or other similar governmental charges imposed or levied by the United States or any political subdivision or taxing authority of or in the United States (collectively, “Taxes”), unless such withholding or deduction is required by law. In the event such withholding or deduction for Taxes is required by law, subject to the limitations described below, the Company shall pay to the Holder (including, for purposes or on account of this Section 4, the any beneficial owner) owner of this Note Notes who is not a Non-U.S. Person (as defined below) such additional amounts (“Additional Amounts”) as may be necessary so to ensure that every the net payment of principal of and interest on this Note to amount received by such Holderbeneficial owner, after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any taxing authority thereof or thereinTaxes, will not be less than equal to the amount provided such person would have received in this Note to be then due and payable (the absence of such amounts, the “Additional Amounts”)withholding or deduction; provided, however, that the Company shall not be required to make any payment of no Additional Amounts shall be payable for or on account of:
(ia) any tax, assessment or other governmental charge that Taxes which would not have been imposed so imposed, withheld or deducted but for for:
(Ai) the existence of any present or former connection between such Holder, the holder or beneficial owner (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder or other equity owner of, or possessor of a person having a power over, such Holderholder or beneficial owner, if such Holder holder or beneficial owner is an estate, a trust, partnership a limited liability company, a partnership, a corporation or corporation, other entity or between a person related to the holder or beneficial owner) and the United States States, including, without limitation, such Holder, holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor, other equity owner or person having such a power) being or having been a citizen or resident of the United States of America or treated as a resident thereof or of the United States, being or having been engaged in a trade or business in the United States, being or having been present in the United States of AmericaStates, or (B) having or having had a permanent establishment in the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forUnited States;
(ii) the failure of the holder, the beneficial owner or any estateother person to comply with certification, inheritanceidentification or information reporting requirements concerning the nationality, giftresidence, salesidentity or connection with the United States of the holder or beneficial owner of the notes, transferif compliance is required by statute, excise, personal property by regulation of the United States or similar tax, assessment any taxing authority therein or other governmental charge;
(iii) any by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge (including, but not limited to, the requirement to provide Internal Revenue Service Form W-8BEN, Form W-8BEN-E, Form W-8ECI, or any subsequent versions thereof or successor thereto, and including, without limitation, any documentation requirement under an applicable income tax treaty); or
(b) any Taxes imposed by reason of such ▇▇▇▇▇▇the holder’s past or beneficial owner’s present or former status as a foreign personal holding company, or personal holding company, with respect to the United States, as a controlled foreign corporation with respect to the United States, as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States, as a foreign tax exempt organization with respect to the United States of America, or as a corporation which that accumulates earnings to avoid United States federal income tax;
(ivc) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge Taxes which would not have been imposed imposed, withheld or deducted but for the failure to comply with certification, information, documentation holder or other reporting requirements concerning the nationality, residence, identity beneficial owner being or connections with the United States of America of the Holder of this Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
having been (vii) any tax, assessment or other governmental charge imposed on interest received by (Ax) a “10% shareholder (-percent shareholder” of ours as defined in Section 871(h)(3)(Bsection 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) or any successor provision, and the regulations that may be promulgated thereunder) of the Company or (By) a controlled foreign corporation with respect that is related to the Company us within the meaning of Section 864(d)(4) of the CodeCode or (z) a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(viiid) any Taxes which would not have been imposed, withheld or deducted but for the presentation by the holder or beneficial owner of such note for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment of the Note is duly provided for, whichever occurs later;
(e) any estate, inheritance, gift, sales, excise, transfer, personal property, wealth or similar Taxes;
(f) any Taxes which are payable otherwise than by withholding or deduction from a payment on such Note;
(g) any Taxes which are imposed, withheld or deducted with respect to, or payable by, a Holder that is imposed on not the beneficial owner of the Note, or a portion of the Note, or that is a fiduciary, partnership, limited liability company or other similar entity, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to such fiduciary or member of such partnership, limited liability company or similar entity would not have been entitled to the payment to of an individual and is Additional Amount had such beneficial owner, settlor, beneficiary or member received directly its beneficial or distributive share of the payment;
(h) any Taxes required to be withheld or deducted by any Paying Agent from any payment on any Note, if such payment can be made without such withholding or deduction by at least one other Paying Agent;
(i) any Taxes required to be withheld or deducted where such withholding or deduction is imposed pursuant to that European Union Council Directive relating to 2003/48/EC on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Councilincome, or any law implementing or complying with, or introduced in order to conform to, such European Council Directive;
(j) any Taxes imposed, withheld or deducted under Sections 1471 through 1474 of the Code (or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code;
(k) any Taxes that would not have been imposed, withheld or deducted but for a change in any law, treaty, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the applicable payment becomes due or is duly provided for, whichever occurs later; or
(ixl) any combination of items (a), (b), (c), (d), (e), (f), (g), (h), (i), (ii), (iii), (iv), (v), (vi), (viij) and (viii) in this Section 4(ak); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay or, in the case of the Guarantees, the Guarantor, will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company or a Paying Agent of the principal of and interest on this Note each of the Notes to such a Holder, after withholding or deduction or withholding for or on account of solely with respect to any present or future tax, assessment or other governmental charge imposed upon such Holder by Luxembourg, the United States of America or any taxing authority other jurisdiction in which the Company or the Guarantor or, in each case, any successor thereof (including a continuing Person formed by a consolidation with the Company or Guarantor, into which the Company or Guarantor is merged, or that acquires or leases all or substantially all of the property and assets of the Company or the Guarantor) may be organized, as applicable, or any political subdivision thereof or thereintherein having the power to tax (a “Taxing Jurisdiction”), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company shall foregoing obligation to pay additional amounts will not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder (A) or the existence of any present or former connection between beneficial owner for whose benefit such HolderHolder holds such Note), or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and the United States including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, membermember or shareholder of the Holder, shareholder or possessora person holding a power over an estate or trust administered by a fiduciary Holder, being treated as:
(a) being or having been present in, or engaged in a trade or business in, the relevant Taxing Jurisdiction, or having or having had a permanent establishment in such Taxing Jurisdiction;
(b) having a current or former connection with the relevant Taxing Jurisdiction (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the Indenture), including being or having been a citizen or resident of the United States of America such Taxing Jurisdiction or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forresident thereof;
(iic) any estatebeing or having been a personal holding company, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(iii) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, company or a controlled foreign corporation for United States federal income tax purposes, a foreign tax exempt organization, or a personal holding company with respect to the United States of America, or as a corporation which accumulates that has accumulated earnings to avoid United States federal income tax;
(ivd) being or having been a “10-percent shareholder”, as defined in section 871(h)(3) of the Code, or any successor provision, of the Company or the Guarantor; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business, within the meaning of section 881(c)(3) of the Code or any successor provision;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of an additional amount had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which that would not have been imposed but for the failure of the Holder or any other person to comply with certification, information, documentation identification or other information reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America relevant Taxing Jurisdiction of the Holder or beneficial owner of this Notethe Notes, if such compliance is required by statute or statute, by regulation of the United States Treasury Department relevant Taxing Jurisdiction or any taxing authority therein or by an applicable income tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(vii4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment;
(5) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(7) to any tax assessment or other governmental charge required to be withheld or deducted that is imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) payment pursuant to sections 1471 through 1474 of the United States Internal Revenue Code (or any amended or successor version of 1986such sections that is substantively comparable and not materially more onerous to comply with), as amended any Treasury Regulations promulgated thereunder, or any other official interpretations thereof (the collectively, “CodeFATCA”), and any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(8) to any tax assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the regulations payment becomes due or is duly provided for, whichever occurs later;
(9) to any tax, assessment or other governmental charge that may be promulgated thereunder) is imposed by reason of the Company failure of the beneficial owner to fulfill the statement requirements of section 871(h) or (Bsection 881(c) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii10) to any withholding or deduction that is tax imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to section 871(h)(6) or section 881(c)(6) of the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, Code (or any law implementing amended or complying with, or introduced in order to conform to, such Directivesuccessor provisions); or
(ix11) in the case of any combination of items the above clauses (i), 1) through (ii), (iii), (iv), (v), (vi), (vii10) and (viii) in under this Section 4(a); nor shall 1.8. Except as specifically provided under this Section 1.8, the Company or the Guarantor will not be required to pay additional amounts in respect of any Additional Amounts be paid to any Holder who is a fiduciary tax, assessment or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holderother governmental charge.
Appears in 1 contract
Sources: Third Supplemental Indenture (Becton Dickinson & Co)
Payment of Additional Amounts. (a) The Company shall shall, subject to the exceptions and limitations set forth below, pay to the Holder (including, for purposes of this Section 4, the beneficial owner) of this any Note who is a Non-U.S. Person (as defined below) such additional amounts as may be necessary so to ensure that every net payment of principal of and interest on this Note to such HolderNote, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon or as a result of such Holder payment by the United States of America or any political subdivision or taxing authority thereof or thereinof the United States, will not be less than the amount provided in this Note such note to be then due and payable (such amountspayable. However, the “Additional Amounts”); provided, however, that the Company shall not be required to make any payment of Additional Amounts pay additional amounts for or on account of:
(i) any tax, assessment or other governmental charge that would not have been is imposed but for (A) or withheld solely by reason of the existence of any present or former connection (other than the mere fact of being a Holder or beneficial owner of a Note) between such Holder, the Holder or beneficial owner (or between a fiduciary, settlor, beneficiary ofor person holding a power over such Holder or beneficial owner, if the beneficial owner is an estate or trust, or a partner, member or shareholder ofof the beneficial owner, if the beneficial owner is a partnership, limited liability company or possessor corporation) of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, Note and the United States States, including, without limitation, such Holder, Holder or beneficial owner (or such fiduciary, settlor, beneficiary, memberperson holding a power, shareholder partner, member or possessor, shareholder) being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided forresident thereof;
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargecharge that is imposed or withheld solely by reason of the Holder or beneficial owner (or a fiduciary, settlor, beneficiary or person holding a power over such beneficial owner, if the beneficial owner is an estate or trust, or a partner, member or shareholder of the beneficial owner, if the beneficial owner is a partnership, limited liability company or corporation) (i) being or having been present in, or engaged in a trade or business in, the United States, (ii) being treated as having been present in, or engaged in a trade or business in, the United States, or (iii) having or having had a permanent establishment in the United States;
(iii) any tax, assessment or other governmental charge that is imposed or withheld solely by reason of the Holder or beneficial owner (or a fiduciary, settlor, beneficiary or person holding a power over such ▇▇▇▇▇▇’s past beneficial owner, if the beneficial owner is an estate or present status as trust, or a partner, member or shareholder of the beneficial owner, if the beneficial owner is a partnership, limited liability company or corporation) being or having been with respect to the United States a personal holding company, a controlled foreign corporation, a passive foreign investment company, a controlled foreign corporation private foundation or a personal holding company with respect to the United States of Americaother foreign tax-exempt organization, or as being a corporation which that accumulates earnings to avoid United States U.S. federal income tax;
(iv) any tax, assessment or other governmental charge imposed on a beneficial owner that actually or constructively owns 10% or more of the total combined voting power of all of our classes of stock that are entitled to vote within the meaning of Section 871(h)(3) of the Internal Revenue Code of 1986, as amended (the “Code”);
(v) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation (where such presentation is required) of such Note for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which such payment is duly provided for, whichever occurs later;
(vi) any tax, assessment or other governmental charge that is payable otherwise by any method other than withholding or deduction by withholding the Company or any paying agent from payment payments in respect of principal of or interest on this such Note;
(vvii) any gift, estate, inheritance, sales, transfer, personal property or excise tax or any similar tax, assessment or other governmental charge;
(viii) any withholding or deduction that is imposed on a payment that is required to be made pursuant to European Council Directive 2003/48/EC or any other Directive amending, supplementing or replacing such Directive, or any law implementing or complying with our introduced in order to conform to, such Directive or Directives.
(ix) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment in respect of principal of or interest on this any Note if such payment can be made without such withholding by any at least one other paying agent;
(vix) any tax, assessment or other governmental charge which would not have been that is imposed but for or withheld by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(xi) any tax, assessment or other governmental charge imposed as a result of the failure of the Holder or beneficial owner of a Note to comply with a request to comply with applicable certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America of the Holder or beneficial owner of this a Note, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(viixii) any tax, assessment or other governmental charge imposed on interest received by (Areason of the failure of the beneficial owner to fulfill the statement requirements of Section 871(h) a 10% shareholder (as defined in or Section 871(h)(3)(B881(c) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixxiii) any tax, assessment or other governmental charge imposed under Sections 1471-1474 of the Code and the U.S. Treasury regulations thereunder (“FATCA”), any agreement with the U.S. Internal Revenue Service in connection with FATCA, any intergovernmental agreement between the United States and any other jurisdiction with respect to FATCA, or any law, regulation or other official guidance enacted in any jurisdiction implementing, or in connection with, FATCA or any intergovernmental agreement; or
(xiv) any combination of items (i)) through (xiii) above.
(b) In addition, (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid the Company will not pay additional amounts to any Holder who a beneficial owner of a Note that is a fiduciary fiduciary, partnership, limited liability company or partnership other fiscally transparent entity, or to a beneficial owner of a Note that is not the sole beneficial owner of such Note, as the case may be. This exception, however, will apply only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership the fiduciary, or a beneficial owner thereofowner, partner or member of the partnership, limited liability company or other fiscally transparent entity, would not have been entitled to the payment of such Additional Amounts an additional amount had such the beneficiary, settlor, beneficial owner, partner or member received directly its beneficial or distributive share of the payment. For purposes of this paragraph, the term “beneficial owner been of a Note” includes any Person holding a Note on behalf of or for the Holderaccount of a beneficial owner. Except as specifically provided under this Section 2.15, the Company shall not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) The Company shall, to the extent permitted by law, maintain a paying agent in a Member State of the European Union (if any) that will not require withholding or deduction of tax pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced to conform to, such European Council Directive.
(d) In the event that the Company is required to pay additional amounts to Holders of Notes, the Company will provide written notice to the Trustee of its obligation to pay additional amounts, and the notice shall set forth the additional amounts to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the additional amounts, or with respect to the nature, extent, or calculation of the amount of additional amounts owed, or with respect to the method employed in such calculation of the additional amounts.
Appears in 1 contract
Payment of Additional Amounts. The Company Except as specifically provided by this Condition 9, TMCC shall not be required to make any payment in respect of the Notes with respect to any tax, assessment or other governmental charge ("Tax") imposed by any government or a political subdivision or taxing authority thereof or therein. TMCC will, subject to certain limitations and exceptions (set forth below), pay to the Holder (includinga Noteholder, for purposes of this Section 4, the beneficial owner) of this Note Receiptholder or Couponholder who is a Non-U.S. Person Alien (as defined below) such additional amounts ("Additional Amounts") as may be necessary so that every net payment of principal or interest in respect of and interest on this Note to such Holderthe Notes, Receipts or Coupons, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge Tax imposed upon such Holder Noteholder, Receiptholder or Couponholder, or by reason of the making of such payment, by the United States of America or any political subdivision or taxing authority thereof or therein, will not be less than the amount provided for in this Note to be then due and payable (such amountsthe Notes, the “Additional Amounts”); providedReceipts or Coupons. However, however, that the Company TMCC shall not be required to make any payment of Additional Amounts for or on account of:
(ia) any tax, assessment or other governmental charge that Tax which would not have been imposed but for (Ai) the existence of any present or former connection between such HolderNoteholder, Receiptholder or Couponholder or any beneficial owner of a Note, Receipt, or Coupon (or between a fiduciary, settlor, beneficiary ofbeneficiary, member or shareholder of, or possessor of a power over, such HolderNoteholder, Receiptholder, Couponholder or beneficial owner, if such Holder Noteholder, Receiptholder, Couponholder or beneficial owner is an estate, trust, partnership or corporation, ) and the United States States, including, without limitation, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident of the United States of America or treated as a resident thereof or being or having been present or engaged in trade or business therein or present in the United States of Americahaving or having had a permanent establishment therein, or (Bii) the presentation of this Note such Noteholder's, Receiptholder's, Couponholder's or beneficial owner's past or present status as a personal holding company, passive foreign investment company, foreign personal holding company, controlled foreign corporation or a private foundation (as those terms are defined for payment on United States tax purposes) or as a date more than 30 days after the later of (x) the date on corporation which such payment becomes due and payable and (y) the date on which payment thereof is duly provided foraccumulates earnings to avoid U.S. federal income tax;
(iib) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental chargeTax;
(iiic) any taxTax that would not have been so imposed but for the presentation of a Note, assessment Receipt or other governmental charge imposed by reason of Coupon for payment on a date more than 15 days after the date on which such ▇▇▇▇▇▇’s past payment became due and payable or present status as a passive foreign investment companythe date on which payment thereof is duly provided for, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income taxwhichever occurs later;
(ivd) any tax, assessment or other governmental charge Tax which is payable otherwise than by deduction or withholding from payment payments of principal of or interest on this Notein respect of the Notes, Receipts or Coupons;
(ve) any tax, assessment Tax imposed on interest received or other governmental charge beneficially owned by (i) a 10% shareholder of TMCC within the meaning of Internal Revenue Code Section 871(h)(3)(b) or Section 881(c)(3)(b) or (ii) a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(f) any Tax required to be withheld or deducted by any paying agent Paying Agent from any payment of principal of or interest on this Note in respect of any Note, Receipt or Coupon, if such payment can be made without such withholding or deduction by any other paying agentPaying Agent with respect to the Notes;
(vig) any tax, assessment or other governmental charge Tax which would not have been imposed but for the failure to comply with certification, information, documentation documentation, or other reporting requirements concerning the nationality, residence, identity or connections connection with the United States of America the Noteholder, Receiptholder or Couponholder or of the Holder beneficial owner of this such Note, Receipt or Coupon, if such compliance is required by statute or by regulation of the United States Treasury Department as a precondition to relief or exemption from such tax, assessment or other governmental chargeTax;
(viih) any tax, assessment or other governmental charge Tax imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to a payment on a Note, Receipt or Coupon to any Noteholder, Receiptholder or Couponholder who is a fiduciary or partnership or other than the Company within the meaning sole beneficial owner of the CodeNote, Receipt or Coupon to the extent a beneficiary or settlor with respect to such fiduciary, a member of such partnership or a beneficial owner of the Note, Receipt or Coupon would not have been entitled to payment of the Additional Amounts, had such beneficiary, settlor, member or beneficial owner been the holder of the Note, Receipt or Coupon;
(viiii) any Tax required to be withheld or deducted by any Paying Agent from any payment of principal or interest in respect of any Note, Receipt or Coupon, where such withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Council Directive relating to 2003/48/EC on the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ixj) any combination of items (ia), (iib), (iiic), (ivd), (ve), (vif), (viig), (h) and (viiii) in this Section 4(a); nor shall any Additional Amounts be paid to any Holder who is a fiduciary or partnership to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder.above;
Appears in 1 contract
Payment of Additional Amounts. The Company shall pay to (a) All payments made by the Holder (includingIssuer or the Note Guarantors under, for purposes of this Section 4or with respect to, the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) such additional amounts as may Notes shall be necessary so that every net payment of principal of made free and interest on this Note to such Holderclear of, after and without withholding or deduction or withholding for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “Taxes”) imposed upon such Holder or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the United States jurisdictions of America such additional paying agents (a “Taxing Jurisdiction”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any taxing authority thereof Note Guarantor is so required to withhold or thereindeduct any amount for, will or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount provided in this Note such Holder would have received if such Taxes had not been required to be then due and payable (such amounts, the “Additional Amounts”)withheld or deducted; provided, however, that the Company shall not be required foregoing obligation to make any payment of pay Additional Amounts for or on account ofdoes not apply to:
(i) any tax, assessment Taxes imposed solely because at any time there is or other governmental charge that would not have been imposed but for (A) the existence of any present or former was a connection between such Holderthe Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor receipt of a power over, such Holder, if such Holder is an estate, trust, partnership payment or corporation, and the United States including, without limitation, such Holder, ownership or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident holding of the United States of America or treated as a resident thereof or being or having been engaged in trade or business or present in the United States of America, or (B) the presentation of this Note for payment on a date more than 30 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof is duly provided for;Notes),
(ii) any estate, inheritance, gift, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;Tax imposed with respect to the Notes,
(iii) any tax, assessment Taxes imposed solely because the Holder or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note if such payment can be made without withholding by any other paying agent;
(vi) any tax, assessment or other governmental charge which would not have been imposed but for the failure person fails to comply with any certification, information, documentation identification or other reporting requirements requirement concerning the nationality, residence, identity or connections connection with the United States of America a Taxing Jurisdiction of the Holder or any beneficial owner of this Note, the Note if such compliance is required by statute or by regulation the applicable law of the United States Treasury Department Taxing Jurisdiction as a precondition to relief exemption from, or exemption from such reduction in the rate of, the tax, assessment or other governmental charge;
(vii) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in Section 871(h)(3)(B) of the United States Internal Revenue Code of 1986, as amended (the “Code”), and the regulations Issuer has given the Holders at least 30 days’ notice that may Holders shall be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect required to the Company within the meaning of the Code;provide such information and identification,
(viiiiv) any Taxes payable otherwise than by deduction or withholding or deduction that is from payments on the Notes,
(v) any Taxes imposed on a payment to or for the benefit of an individual and is required to be made pursuant to that European Union Council Directive relating 2003/48/EC (as amended from time to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, time) or any law implementing or complying with, or introduced in order to conform to, such Directive; ,
(vi) any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,
(vii) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or
(ixviii) any combination of items (i), (ii), (iii), (iv), (v), (vi), (vii) and (viii) in this Section 4(a); nor shall any Additional Amounts be paid payment on the Note to any a Holder who that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary or fiduciary, a member of such a partnership or a the beneficial owner thereof, of the payment would not have been entitled to the payment of such Additional Amounts had such the beneficiary, settlor, member or beneficial owner been the HolderHolder of the Note.
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice, or (ii) Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (Ley del Impuesto Sobre la Renta) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in clause (iii) of (b)Section 3.21(b) is expressly required by the applicable Mexican laws and regulations in order to apply Article 166, Section II, paragraph (a), of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on its own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations.
(e) Clause (iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service (Servicio de Administración Tributaria) or the Mexican Ministry of Finance and Public Credit (Secretaría de Hacienda y Crédito Público) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(f) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(g) The Issuer will ensure that it maintains a paying agent, in a European Union member state, that will not be obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC (as amended from time to time) or any law implementing or complying with, or introduced in order to conform to, such Directive.
(h) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Appears in 1 contract
Sources: Indenture (Cemex Sab De Cv)
Payment of Additional Amounts. (a) The Company shall pay will, subject to the Holder (includingexceptions and limitations set forth below, for purposes of this Section 4, pay as additional interest on the beneficial owner) of this Note who is a Non-U.S. Person (as defined below) Notes such additional amounts as may be are necessary so in order that every the net payment by the Company of the principal of and interest on this Note the Notes to such Holdera Holder who is not a United States person (as defined herein), after withholding or deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed upon such Holder by the United States of America or any a taxing authority thereof in the United States (including any withholding or thereindeduction with respect to the payment of such additional amounts), will not be less than the amount provided in this Note the Notes to be then due and payable (such amounts, the “Additional Amounts”)payable; provided, however, that the Company foregoing obligation to pay additional amounts shall not be required to make any payment of Additional Amounts for or on account ofapply:
(i1) to any tax, assessment or other governmental charge that is imposed by reason of the Holder (or the beneficial owner for whose benefit such H▇▇▇▇▇ holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder or beneficial owner if the Holder or beneficial owner is an estate, trust, partnership, corporation or other entity, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as:
(a) being or having been engaged in a trade or business in the United States or having or having had a permanent establishment in the United States;
(b) having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment thereon or the enforcement of any rights thereunder), including being or having been a citizen or resident of the United States;
(c) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States federal income tax purposes or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder” of the Company as defined in Section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision; or
(e) being a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficial owner with respect to the Holder, a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company would not have been entitled to the payment of such additional amounts had the beneficiary, settlor, beneficial owner or member received directly its beneficial or distributive share of the payment;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for (A) the existence failure of the Holder or any present other person to comply with any certification, identification or former information reporting requirements concerning the nationality, residence, identity or connection between such Holder, or between a fiduciary, settlor, beneficiary of, member or shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation, and with the United States includingof such Holder or other person, without limitationif compliance is required by statute, such Holder, or such fiduciary, settlor, beneficiary, member, shareholder or possessor, being or having been a citizen or resident by regulation of the United States of America or treated as a resident thereof any taxing authority therein or being or having been engaged in trade or business or present in by an applicable income tax treaty to which the United States of Americais a party as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge;
(B4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the presentation of this Note Company or a paying agent from payments on the Notes;
(5) to any tax, assessment or other governmental charge that would not have been imposed but for payment on a date change in law, regulation, or administrative or judicial interpretation that becomes effective more than 30 15 days after the later of (x) the date on which such payment becomes due and payable and (y) the date on which payment thereof or is duly provided for, whichever occurs later;
(ii6) to any estate, inheritance, gift, sales, excise, transfer, excisewealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(iii7) any tax, assessment or other governmental charge imposed by reason of such ▇▇▇▇▇▇’s past or present status as a passive foreign investment company, a controlled foreign corporation or a personal holding company with respect to the United States of America, or as a corporation which accumulates earnings to avoid United States federal income tax;
(iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payment of principal of or interest on this Note;
(v) any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note any Note, if such payment can be made without such withholding by any presenting such Note (where presentation is required) to at least one other paying agent;
(vi) 8) to any tax, assessment or other governmental charge which that would not have been imposed but for the failure to comply with certification, information, documentation or other reporting requirements concerning the nationality, residence, identity or connections with the United States of America of presentation by the Holder of this any Note, if such compliance where presentation is required by statute required, for payment on a date more than 30 days after the date on which payment became due and payable or by regulation of the United States Treasury Department as a precondition date on which payment thereof is duly provided for, whichever occurs later;
(9) to relief or exemption from such any tax, assessment or other governmental chargecharge that is imposed or withheld solely by reason of the beneficial owner being a bank (i) purchasing the Notes in the ordinary course of its lending business or (ii) that is neither (A) buying the Notes for investment purposes only nor (B) buying the Notes for resale to a third-party that either is not a bank or holding the Notes for investment purposes only;
(vii10) to any tax, assessment or other governmental charge imposed on interest received by under Sections 1471 through 1474 of the Code (A) a 10% shareholder (as defined in or any amended or successor provisions), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 871(h)(3)(B1471(b) of the United States Internal Revenue Code or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of 1986, as amended (the “Code”), and the regulations that may be promulgated thereunder) of the Company or (B) a controlled foreign corporation with respect to the Company within the meaning such sections of the Code;
(viii) any withholding or deduction that is imposed on a payment to an individual and is required to be made pursuant to that European Union Directive relating to the taxation of savings adopted on June 3, 2003 by the European Union’s Economic and Financial Affairs Council, or any law implementing or complying with, or introduced in order to conform to, such Directive; or
(ix11) in the case of any combination of items (i1), (ii2), (iii3), (iv4), (v5), (vi6), (vii7), (8), (9), and (10).
(b) The Notes are subject in all cases to any tax, fiscal or other law or regulation or administrative or judicial interpretation applicable to the Notes. Except as specifically provided under this Section 3.01, the Company will not be required to make any payment for any tax, assessment or other governmental charge imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.
(c) As used under this Section 3.01 and Section 2.08 hereof, the term “United States” means the United States of America (including the states of the United States and the District of Columbia and any political subdivision thereof) and (viii) in this Section 4(a); nor shall the term “United States person” means any Additional Amounts be paid to any Holder individual who is a fiduciary citizen or resident of the United States for U.S. federal income tax purposes, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership that is not treated as a United States person under any applicable Treasury regulations), any estate the income of which is subject to United States federal income taxation regardless of its source or any trust that (i) is subject to the extent that primary supervision of a beneficiary court within the United States and the control of one or settlor more United States persons with respect to such fiduciary all of its substantial decisions or (ii) has a member of such partnership or valid election in effect under applicable Treasury regulations to be treated as a beneficial owner thereof, would not have been entitled to the payment of such Additional Amounts had such beneficiary, settlor, member or beneficial owner been the HolderUnited States person.
Appears in 1 contract
Sources: Supplemental Indenture (Fedex Corp)