Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable: (i) for or on account of: (a) any tax, duty, assessment or other governmental charge that would not have been imposed but for: (1) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein; (2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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 (3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner; (b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge; (c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes; (d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA (e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or (ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof. (b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes. (c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes. (d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10. (e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (WEIBO Corp), Indenture (Sina Corp)
Payment of Additional Amounts. (a) All payments and deliveries made by If the Company or any successor to the Company under or with respect to this Indenture and the NotesSecurities of a particular series provide for payment of Additional Amounts, including, but not limited to, all payments of principal and interest (including the Fundamental Change Repurchase Pricepayments of discount and premium, if applicable, and any) in respect of the Redemption Price, if applicable), payments Securities of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, such series shall be made free and clear of, and without withholding or deduction for, for or on account ofaccount, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within the United Kingdom or by or within any jurisdiction in which the Company political subdivision thereof or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"United Kingdom Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the that event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each the Holder such additional amounts (“"Additional Amounts”") as may be necessary will result in the payment to ensure such Holder of the amount that would otherwise have been receivable by such Holder in the net amount received by the beneficial owner after absence of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts deduction, except that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(a) any taxto, dutyor to a Person on behalf of, assessment or other governmental charge that would not have been imposed but for:
(1) the existence a Holder who is liable for such United Kingdom Taxes in respect of any present or former connection between the relevant Holder or beneficial owner Securities, by reason of such Note and Holder having some connection with the Relevant Taxing JurisdictionUnited Kingdom (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than merely the mere holding such Note of a Security or the receipt of principal and interest (including payments or the enforcement of rights thereunderdiscount and premium, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged if any) in a trade or business therein or having or having had a permanent establishment therein;respect thereof; or
(2b) the presentation of such Note to, or to a Person on behalf of, a Holder who presents a Security (in cases in which where presentation is required) for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note Security for payment on any date during the last day of such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge30 days;
(c) any taxto, dutyor to a Person on behalf of, assessment or other governmental charge that a Holder who presents a Security (where presentation is payable otherwise than by withholding from payments under or with respect to required) in the NotesUnited Kingdom;
(d) any taxto, assessmentor to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction required by FATCA, any current making a declaration of non- residence or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between similar claim for exemption to the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCArelevant tax authority; or
(e) any combination to, or to a Person on behalf of, a Holder of taxes, duties, assessments or other governmental charges referred a definitive Registered Security issued pursuant to the request of owners representing a majority in outstanding principal amount in the preceding clauses Book-Entry Interest following and during the continuance of an Event of Default if such Holder (a)or any predecessor Holder) was one of such owners requesting that definitive Registered Securities be so issued. Such Additional Amounts will also not be payable where, (b), (c) or (d); or
(ii) with respect to any payment of had the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in Security (or any interest therein) been the income under the laws Holder of the Relevant Taxing JurisdictionSecurity, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who he would not have been entitled to such payment of Additional Amounts had by reason of any one or more of clauses (a) through (e) above. If the Company shall determine that beneficiaryAdditional Amounts will not be payable because of the immediately preceding sentence, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make inform such Holder promptly after making such determination setting forth the reason(s) therefor. Reference to principal, interest, discount or premium in respect of the Securities shall be deemed also to refer to any required withholding Additional Amounts which may be payable as set forth in this Indenture or deduction of taxes and remit in the full amount deducted or withheld Securities. At least 10 Business Days prior to the relevant taxing jurisdiction 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 matters set forth in accordance with applicable law. The the below- mentioned Officers' Certificate) the Company will furnish to the trustee, within 30 days after Trustee and the date Paying Agents an Officers' Certificate instructing the payment Trustee and the Paying Agents whether payments of principal of or interest on the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any taxes so deducted United Kingdom Taxes. If any such deduction or withholding shall be required, 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 is due pursuant to applicable law, either certified copies of tax receipts evidencing on such payment orto Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, if such receipts are not obtainableand to hold the Trustee harmless against, other evidence any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part, arising out of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available in connection with actions taken or omitted by the Trustee in reliance on any Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 1009 to be provided to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), Trustee and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Paying Agent shall be deemed to include any Additional Amounts, unless be duly provided if telecopied to the context requires otherwise, that are Trustee and such Paying Agent. The Company shall furnish to the Trustee the official receipts (or may a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be payable with respect made available to that amount under the obligations referred to in this Section 5.10Holders of the Securities upon request.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (Southern Investments Uk PLC), Indenture (PPL Electric Utilities Corp)
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture pursuant to Section 3.01 establishing the terms of a particular series of Securities, the Issuer will pay to the Company under or with respect to this Indenture Holder of any Security such additional amounts as may be necessary in order that every net payment of the principal of (and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Pricepremium, if applicableany, on) and interest, if any, and the Redemption PriceDeferred Interest, if applicable)any, payments of interest, including on any Additional Interest, and deliveries of ADSs (together with payments of cash such Security after deduction or other withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxestax, dutiesassessment, assessments duty or other governmental charges charge of whatever any nature imposed whatsoever imposed, levied or levied collected by or within any jurisdiction in which on behalf of the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (United Kingdom or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will not be less than the force of law. In the event that amount provided for in any such withholding or deduction is so requiredSecurity to be then due and payable; provided, however, that the Company or any successor foregoing obligation to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or will not apply on account of:
(a) of any tax, dutyassessment, assessment duty or other governmental charge that would not have been imposed but forwhich is payable:
(1) the existence otherwise than by deduction or withholding from payments of principal of (or premium, if any, on) or interest or Deferred Interest, if any, on any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation by reason of such Note Holder having, or having had, some personal or business connection with the United Kingdom and not merely by reason of the fact that payments are, or for the purposes of taxation are deemed to be, from sources in, or secured in the United Kingdom; or
(3) except in cases the case of the winding up of the Issuer in which presentation England, where the relevant Security is requiredpresented for payment in the United Kingdom; or
(4) where the relevant Security is presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date (as defined below) except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts additional amounts on presenting such Note the Security for payment on any date during such 30-day periodthirtieth day; or
(35) with respect to a payment to an individual, where the failure deduction or withholding is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the Holder or beneficial owner to comply with a timely request from meeting of the Company European Council of Economics and Finance Ministers of November 26-27, 2000 (or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement supplemental ECOFIN meeting relating to such mattersdirective) or any law implementing or complying with, if and or introduced in order to conform to, such Directive; or
(6) on a Security presented for payment by a Holder who would have been able to avoid such deduction or withholding by presenting the extent that due and timely compliance with such request is required by statute, regulation or administrative practice relevant Security to another paying agent in a Member State of the Relevant Taxing Jurisdiction to reduce European Union or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;elsewhere; or
(b7) by reason by any estate, excise, inheritance, gift, salesales, transfer, excise, wealth or personal property tax or any similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii8) as a result of the failure of a Holder to satisfy any statutory requirements or make a declaration of non-residence or other claim for exemption; or
(9) by reason of a change in law or official practice of any relevant taxing authority that becomes effective more than 30 days after the Relevant Date (as defined below) for payment of principal (or premium, if any) or interest or Deferred Interest, if any, in respect of such Security; or
(10) owing to any combination of clauses (1) through (9) above (provided that such provision is applicable to the relevant series of Securities in accordance with this Subordinated Indenture). No additional amounts will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and interest, including any Additional on) or interest or Deferred Interest, onif any, on any such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to the additional amounts had such Additional Amounts had that beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes and remit such Security. For the full amount deducted or withheld to purposes hereof the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after “Relevant Date” means the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or on which the payment of principal of (including the Fundamental Change Repurchase Priceor premium, if applicableany, and the Redemption Priceon) or interest or Deferred Interest, if applicable)any, on any Security first becomes due and payable but, if the full amount of the monies payable on such date has not been received by the relevant Paying Agent or as it shall have directed on or prior to such date, the “Relevant Date” means the date on which such monies shall have been so received. Whenever in this Subordinated Indenture there is mentioned, in any premium context, the payment of the principal of (or interestpremium, including any Additional Interestif any, on) or interest or Deferred Interest (or, any Note or any other amount payable with respect to the Perpetual Subordinated Capital Securities, any other payments), if any, on any Security, such Note, mention shall be deemed to include any Additional Amountsmention of the payment of additional amounts provided for in the terms of such Securities and this Section to the extent that, unless the context requires otherwisein such context, that are additional amounts are, were or may would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of additional amounts as contemplated by Section 3.01(21), at least 10 days prior to the first Interest Payment Date with respect to that amount under series of Securities (or if the obligations Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest and Deferred Interest, if any, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer will furnish the Subordinated Trustee for that series of Securities with an Officers’ Certificate instructing such Subordinated Trustee whether such payment of principal of (and premium, if any, on) and interest and Deferred Interest, if any, on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment, duty or other governmental charge as referred to above or described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer will pay to the Subordinated Trustee for such series of Securities such additional amounts as may be required pursuant to the terms applicable to such series. The Issuer covenants to indemnify the Subordinated Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 5.10.
(e) 10.07 or the failure to provide any such Officers’ Certificate. The foregoing obligations contained in the immediately preceding sentence of the Issuer shall survive termination or payment of all of the Securities, the satisfaction and discharge of this Subordinated Indenture, and the resignation or removal of the Subordinated Trustee or any Paying Agent for such series of Securities. The Issuer hereby undertakes that, if any withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the proposal agreed by the European Council of the Economic and Finance Ministers (“ECOFIN”) on January 21, 2003 or any law implementing or complying with, or introduced in order to conform to, any such Directive, it will ensure that it maintains a paying agent with a specific office in a European Union member state that will not be obliged to withhold or deduct tax pursuant to any European Union Directive on the taxation of savings income implementing those proposals or any such law; provided, that under no circumstances shall the Issuer be obliged to maintain a paying agent with a specified office in such member state unless at least one member state of the European Union does not require a paying agent making payments through a specified office in that member state to so withhold or deduct tax.
Appears in 2 contracts
Sources: Subordinated Indenture (Prudential PLC), Subordinated Indenture (Prudential PLC)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or Issuer, Tyco and any successor to the Company other Guarantor under or with respect to this Indenture the Securities and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Guarantees will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Taxing Authority (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless the Issuer, Tyco or such withholding or deduction Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that the Issuer, Tyco or such Guarantor is required to so withhold or deduct any such withholding amount for or deduction is so requiredon account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the case may be, the Company Issuer, Tyco or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure so that the net amount received by the beneficial owner each Holder of Securities (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall will equal the amounts amount that such Holder would have received if such Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account ofpayable with respect to a payment made to a Holder of Securities to the extent:
(a) that any tax, duty, assessment or other governmental charge that such Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between such Holder and the relevant Holder or beneficial owner Taxing Authority imposing such Taxes (other than the mere receipt of such Note and the Relevant Taxing Jurisdictionpayment, other than merely holding acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder such Securities, including, without limitation, such Holder the Guarantees or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinthis Indenture);
(2b) of any estate, inheritance, gift, sales, transfer, or personal property Tax imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Note Securities (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
(3d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the failure making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the Holder relevant Taxing Authority as a precondition to an exemption from, or beneficial owner to comply with a timely request from reduction in, the Company or any successor of the Companyrelevant Taxes, addressed and (y) at least 60 days prior to the Holder first payment date with respect to which the Issuer, Tyco or beneficial ownersuch Guarantor shall apply this clause (d), the Issuer, Tyco or such Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The Issuer, Tyco or such Guarantor, as applicable, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Authority in accordance with all applicable laws. The Issuer, Tyco or such Guarantor, as applicable, will use their reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer, Tyco or such Guarantor, as the case may be, to provide certificationwill, informationupon request, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and available to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice Holders of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trusteeSecurities, within 30 60 days after the date the payment of any taxes Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Issuer, if Tyco or such receipts Guarantor or if, notwithstanding the Issuer's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments reasonably satisfactory by the Issuer, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the TrusteeSecurities is due and payable, if the Issuer, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer, Tyco or such Guarantor will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Securities on the payment date. Upon requestThe foregoing provisions shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer, copies of those receipts Tyco or other evidence of paymentssuch Guarantor, as the case may be, will be made available by is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company Issuer will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable the foregoing in respect of the creation, issue, offering, executionenforcement, delivery, registration, enforcement redemption or making payments in respect retirement of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference Securities. Whenever in this Indenture or the Notes Securities there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of (including the Fundamental Change Repurchase Priceprincipal, if applicableredemption price, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note interest or any other amount payable under or with respect to any Security, such Note, mention shall be deemed to include any mention of the payment of Additional AmountsAmounts to the extent that, unless the context requires otherwisein such context, that are Additional Amounts are, were or may would be payable with in respect to that amount under the obligations referred to in this Section 5.10thereof.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (Tyco International LTD /Ber/), Subordinated Indenture (Tyco International LTD /Ber/)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments interest in respect of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, each Note 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 imposed, levied, collected, withheld or levied assessed by or within Bermuda or any other jurisdiction in which the Company is organized or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which any payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”)with respect to the Notes, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction in respect of principal or interest is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure that the net amount received will result in receipt by the beneficial owner after each Holder of any Note of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such Holder or the beneficial owner with respect to such Note had no such withholding or deduction been required; provided , except that no Additional Amounts shall be payable:
(ia) for or on account of:
(ai) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1A) the existence of any present or former connection between the relevant such Holder or the beneficial owner of such Note and Bermuda or such other jurisdiction in which the Relevant Taxing JurisdictionCompany is organized, as the case may be, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunderNote, including, without limitation, such Holder or the beneficial owner of such Note being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2B) the presentation of such Note (in cases in which where presentation is required) more than 30 thirty (30) days after the later of the date on which the payment in respect of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note for payment on any date during day within such period of thirty (30-day period) days; or
(3C) the failure presentation of the Holder or beneficial owner to comply with a timely request from the Company such Note for payment in Bermuda or any successor of the Companypolitical subdivision thereof or therein, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning unless such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would Note could not have otherwise been payable to such Holder or beneficial ownerpresented for payment elsewhere;
(bii) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(ciii) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure of such Holder or the beneficial owner of such Note to comply with a request by the Company addressed to such Holder (A) to provide information concerning the nationality, residence or identity of such Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(iv) any tax, duty, assessment or other governmental charge that which is payable otherwise other than by withholding or deduction from payments under or with respect to the Notes;; or
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(ev) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (a1), (b2), (c3) or and (d4); or;
(iib) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, or interest on such Note to such Holder (including a Holder, if the Holder is a fiduciary, partnership fiduciary or person other than the sole beneficial owner of that payment partnership) to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who of such Note would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingNote. Whenever there is mentioned, in each caseany context, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal or interest in respect of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or the net proceeds received on the sale or exchange of any other amount payable with respect to such Note, such mention shall be deemed to include any the payment of Additional AmountsAmounts provided for in this Indenture to the extent that, unless the context requires otherwisein such context, that are Additional Amounts are, were or may would be payable with in respect thereof pursuant to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (Aes China Generating Co LTD), Indenture (Aes China Generating Co LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture pursuant to Section 3.01 establishing the Company under or with respect to this Indenture and the Notesterms of a particular series of Securities, including, but not limited to, all payments of principal (including and interest by or on behalf of the Fundamental Change Repurchase Price, if applicable, and Issuer or the Redemption Price, if applicable), payments Guarantor in respect of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Security will be made 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 or within any jurisdiction in which on behalf of the Company United Kingdom or any successor to the Company isHong Kong, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision sub-division of, or taxing any authority thereof of, or therein) in, the United Kingdom or Hong Kong having power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), unless such the withholding or deduction of such taxes, duties, assessments or governmental charges is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company Issuer or any successor to the Company shall Guarantor, as the case may be, will in respect of payments of principal and interest pay to each Holder such additional amounts (“Additional Amounts”) on the Security as may shall be necessary to ensure in order that the net amount received by the beneficial owner Holder of the Security after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that which would have been received by receivable in respect of the Security in the absence of any requirements to make such beneficial owner had no such presented for withholding or deduction been required; provided (“Additional Amounts”), except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in relation to any tax, duty, assessment or other governmental charge that would not have been imposed but forSecurity:
(1) the existence of any present presented for payment by, or former connection between the relevant on behalf of, a Holder who is liable for such taxes, duties or beneficial owner governmental charges in respect of such Note and Security by reason of his having some connection with the Relevant Taxing Jurisdiction, Jurisdiction other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation presented for payment by, or on behalf of, a holder who would be able to avoid such withholding or deduction by complying with any statutory requirements (including, but not limited to, obtaining and/or presenting any form of such Note certificate) or by mailing a declaration or any other statement or claim for exemption (in cases in which presentation is requiredincluding, but not limited to, a declaration of nonresidence), but fails to do so; or
(3) presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts on presenting such Note the Security for payment on any date during such 30-thirtieth day period; or
(3) the failure of the Holder or beneficial owner assuming that day to comply with have been a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Payment Day. No Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and on) or interest, including if any, on any Additional Interest, on, such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction such Security. Whenever in accordance with applicable law. The Company will furnish to the trusteethis Senior Indenture there is mentioned, within 30 days after the date in any context, the payment of the principal of (or premium, if any, on) or interest, if any, on any taxes so deducted Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in the terms of such Securities and this Section to the extent that, in such context, Additional Amounts are, were or withheld is due would be payable in respect thereof pursuant to applicable lawthe provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts as contemplated by Section 3.01(15), either certified copies at least 10 days prior to the first Interest Payment Date with respect to that series of tax receipts evidencing Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest, if any, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer and the Guarantor will furnish the Senior Trustee for that series of Securities with an Officers’ Certificate instructing such Senior Trustee whether such payment orof principal of (and premium, if such receipts are not obtainableany, other evidence on) and interest, if any, on the Securities of payments reasonably satisfactory that series shall be made to the Trustee. Upon requestHolders of Securities of that series without withholding for or on account of any tax, copies of those receipts assessment, duty or other evidence governmental charge referred to above or described in the Securities of paymentsthat series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer or the Guarantor, as the case may be, will be made available by the Trustee pay to the Holders Senior Trustee for such series of Securities such Additional Amounts as may be required pursuant to the terms applicable to such series. The Issuer and the Guarantor, jointly and severally, covenant to indemnify the Senior Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or beneficial owners expense reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.08 or the failure to provide any such Officers’ Certificate. The obligations contained in the immediately preceding sentence of the Notes.
(c) Issuer and the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect Guarantor shall survive payment of all of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection withSecurities, the enforcement satisfaction and discharge of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicableSenior Indenture, and the Redemption Price, if applicable), and any premium resignation or interest, including any Additional Interest, on, any Note removal of the Senior Trustee or any other amount payable with respect to Paying Agent for such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10series of Securities.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Senior Indenture (Prudential Funding (Asia) PLC), Senior Indenture
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuers will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the "Additional Amounts") as may be necessary in order that every net payment or deemed payment of (i) principal, premium, Liquidated Damages and interest, if any, with respect to this Indenture and a Note, or (ii) net proceeds on the Notessale or exchange of a Note, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided provided, however, that no such Additional Amounts shall be payablepayable in respect of any Note for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Note;
(2b) the presentation of presented such Note for payment in The Bahamas or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Note for payment more than 30 days after the later of the date on which the payment in respect of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orSecurities;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Note to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment Note; or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture (Sun International Hotels LTD), Indenture (Sun International North America Inc)
Payment of Additional Amounts. (a) All payments and deliveries made by that the Company or any successor to the Company makes under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Notes will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxestaxes or any duty, dutieslevy, assessments impost, assessment or similar governmental charges in the nature of whatever nature Tax (collectively, “Taxes”). If the Company is required to withhold or deduct any amount for or on account of any such Taxes imposed or levied by or within any jurisdiction in which on behalf of the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (United Kingdom or any political subdivision or taxing governmental authority thereof or therein) therein having the power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), unless such withholding from any payment made under or deduction is required by law or by regulation or governmental policy having with respect to the force of law. In the event that any such withholding or deduction is so requiredNotes, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by each Holder of the beneficial owner Notes after such withholding or deduction (and after deducting any taxes on will be not less than the Additional Amounts) shall equal amount the amounts that Holder would have received if such Taxes had not been received by such withheld or deducted.
(b) The Company shall not, however, pay Additional Amounts to a Holder or beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for of Notes in respect or on account of:
(ai) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed imposed, assessed, levied or collected but for:
(1) for the existence of any a present or former business or personal connection between the relevant Holder or beneficial owner (or a fiduciary, settler, beneficiary, partner, member or shareholder of, or possessor of power over the relevant holder, if the relevant holder is an estate, nominee, trust, partnership or corporation) of the applicable Notes and the United Kingdom (including, but not limited to, citizenship, nationality, residence, domicile, physical presence or existence of a business, a permanent establishment, a place of business or a place of management present or deemed present within the United Kingdom) other than the mere receipt, ownership, holding or disposition of such Note and the Relevant Taxing JurisdictionNotes, other than merely holding such Note or the receipt of any payments or the exercise or enforcement of rights thereunder, including, without limitation, under such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinNotes;
(2ii) any Taxes that would not have been imposed, assessed, levied or collected but for the presentation of such Note (in cases in which fact that, where presentation is required) , the applicable Note was presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date (as defined below) except to the extent that the holder or beneficial owner of such Note a Holder would have been entitled to such Additional Amounts on presenting such if it had presented the Note for payment on any date day during such 30-day period; or;
(3iii) the failure of any Taxes that would not have been imposed, assessed, levied or collected had the Holder or beneficial owner to comply of the applicable Notes complied on a timely basis, with a timely written request from of the Company for any applicable information or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matterscertification that would have, if and provided on a timely basis, permitted the payment to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any be made without withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder (or beneficial ownerwith a reduced rate of withholding or deduction);
(biv) any estate, inheritance, gift, salesales, excise, transfer, excise, personal property or similar tax, assessment or other governmental chargeTaxes;
(cv) any tax, duty, assessment or Taxes payable other governmental charge that is payable otherwise than by deduction or withholding from payments under under, or with respect to to, the applicable Notes;
(dvi) any tax, assessment, withholding or deduction required by FATCAto be made from a payment pursuant to Sections 1471-1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the Issue Date, any current or future Treasury Regulations regulations or rulings promulgated thereunderofficial interpretations thereof, any law, regulation similar law or other official guidance enacted in any jurisdiction implementing FATCA, any regulations adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States and any other jurisdiction with respect to implement FATCA the foregoing or any law enacted by such other jurisdiction agreements entered into pursuant to give effect to such agreement, or any agreement with Section 1471(b)(1) of the U.S. Internal Revenue Service under FATCACode;
(evii) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) Taxes that were imposed with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such on a Note to a Holder, if the Holder is a fiduciary, any fiduciary or partnership or person other than the sole beneficial owner of that such payment to the extent that such payment no Additional Amounts would be required to be included in have been payable had the income under the laws beneficial owner of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner applicable Note been the Holder thereof.of such Note; or
(bviii) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment Taxes that are payable on account of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal combination of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10i) through (vii) above.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: First Supplemental Indenture (Argo Blockchain PLC), First Supplemental Indenture (Argo Blockchain PLC)
Payment of Additional Amounts. (a) All Unless otherwise required by Bermudan law, neither the Company nor any Guarantor will deduct or withhold from payments made with respect to the Securities and deliveries made by the Guarantees, if any, on account of any present or future Taxes. In the event that either the Company or any successor Guarantor is required to the Company withhold or deduct on account of any Taxes due from any payment made under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company Securities or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachGuarantees, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredcase may be, the Company or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall each Holder of Securities will equal the amounts amount that the Holder would have received if the Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
payable with respect to a payment made to a Holder to the extent: (a) that any tax, duty, assessment or other governmental charge that Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionBermuda, other than merely holding the mere receipt of the payment, acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder the Securities, includingthe Guarantees, without limitationif any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (c) that any such Holder or beneficial owner being or having Taxes would not have been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) imposed but for the presentation of such Note (in cases in which the Securities, where presentation is required) , for payment on a date more than 30 days after the later of the date on which the payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
or (3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant Taxing Jurisdiction relevant taxing authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes; and (ii) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment with respect to which the Notes;
(d) any tax, assessment, withholding Company or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or Guarantor shall apply this clause (d); or
(ii) with respect to any payment , the Company or such Guarantor shall have notified all Holders of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of Securities in writing that payment to the extent that such payment would they shall be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary provide this declaration or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) claim. The Company will make any required withholding and such Guarantor shall also (w) withhold or deduction of taxes and deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing jurisdiction authority in accordance with all applicable law. The Company will furnish laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the trusteeHolders of the Securities, within 30 60 days after the date the payment of any taxes so Taxes deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if such receipts the same are not obtainable, other evidence of payments reasonably satisfactory to the Trusteesuch payments. Upon requestIn addition, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company or any Guarantor will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable in the foregoing with respect of to the creation, issue, offering, executionenforcement, deliveryredemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, registrationif the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, enforcement the Company (or making payments in respect of the NotesGuarantees, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect Guarantor) shall deliver to the Notes.
(d) Any reference Trustee and the Securities Administrator an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee or to allow the Trustee to cause the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including the Fundamental Change Repurchase Pricedefaulted interest), if applicableany, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable on or with respect to any of the Securities, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10.
(e) The foregoing obligations shall survive termination 3.07 to the extent that, in such context, Additional Amounts are, were or discharge would be payable in respect thereof pursuant to the provisions of this IndentureSection 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 2 contracts
Sources: Indenture (Nabors Industries LTD), Indenture (Nabors Industries LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by in respect of the Company or any successor to the Company under or with respect to this Indenture and the NotesSecurities, including, but not limited towithout limitation, payments of principal (including the Fundamental Change Repurchase Priceprincipal, interest, if applicableany, and the Redemption Pricepremium, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversionany, shall be made by the Issuer without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments levies, or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or levied established in the future by or within on behalf of Luxembourg or any taxing authority having jurisdiction in which the Company Luxembourg or any successor over Luxembourg with respect to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made such payments (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding Taxes are so levied or deduction is so requiredimposed, the Company or any successor to the Company Issuer shall pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure in order that the net amount received amounts receivable by the beneficial owner each Holder after such any payment, withholding or deduction (and after deducting any taxes on the Additional Amounts) in respect of such Taxes shall equal the respective amounts that of principal, interest, if any, and premium, if any, which would have been received by receivable in respect of the Securities in the absence of such beneficial owner had payment, withholding or deduction; except that no such withholding or deduction been required; provided that no Additional Amounts shall will be payable:
(i) payable with respect to any payment on any Security to, or to a third party on behalf of, a Holder for or on account of:
(a) of any tax, duty, assessment or other governmental charge such Taxes whatever that would not have been imposed but for:
by reason of (1i) the existence Holder (or a fiduciary, settlor, beneficiary, member or shareholder of any such Holder, if such Holder is an estate, a trust, a partnership or a corporation) being a citizen or resident of Luxembourg or deemed a resident of Luxembourg or of the European Union or having some present or former connection between with Luxembourg (including, but not limited to, the relevant situation where a Holder (or beneficial owner such fiduciary, settlor, beneficiary, member or shareholder) carried or carries on a trade or business in Luxembourg or has or had a permanent establishment or permanent representative in Luxembourg) other than the mere holding of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note Security or the receipt of payments principal, interest, if any, or the enforcement of rights thereunderpremium, includingif any, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
respect thereof; (2ii) the presentation by the Holder of such Note (in cases in which presentation is required) a Security for payment on a date more than 30 thirty (30) days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day periodwhichever occurs later; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(biii) any estate, inheritance, gift, salesales, transfer, excise, transfer or personal property tax or any similar tax, assessment or governmental charge; (iv) any tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that which is payable otherwise than by withholding from payments under on or with in respect to the Notes;
of any Security; or (d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(ev) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (ai), (bii), (ciii) or (div); or
(ii) . Furthermore, no Additional Amounts shall be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note on a Security to a Holder, if the Holder that is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such receive the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawHolder. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference Whenever in this Indenture or the Notes Securities there is a reference, in any context context, to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interestif any, on, or in respect of, any Note or any other amount payable with respect to Security, such Note, payment shall be deemed to include any the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10to the extent that, in such context, Additional Amounts are, were or would be payable in respect of such payment pursuant to the provisions of such Section and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Subordinated Debt Indenture (Stolt Offshore S A), Subordinated Debt Indenture (Stolt Offshore S A)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or If any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed by the jurisdiction, other than the United States, where C▇▇▇▇▇ Parent or levied by a successor (a “Payor”) is organized or within any jurisdiction in which the Company or any successor otherwise considered to the Company is, be a resident for tax purposes, organized or otherwise resident or any jurisdiction, other than the United States, from or through which the Payor makes a payment is made (or on the Debt Securities, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) therein having the power to tax (each, as applicable, a the “Relevant Taxing Tax Jurisdiction”)) in respect of any payments under the Debt Securities, unless such withholding or deduction is required by law or by regulation or governmental policy having the force including any Guarantee with respect to any series of law. In the event that any such withholding or deduction is so requiredDebt Securities, the Company or any successor to the Company Payor shall pay to each Holder of a Debt Security, to the extent it may lawfully do so, such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by specified in such Debt Security to which such holder is entitled; provided, however, the beneficial owner after such withholding or deduction (and after deducting Payor shall not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note holder, if such holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, Tax Jurisdiction including, without limitation, such Holder holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such the Relevant Taxing Tax Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
in the Relevant Tax Jurisdiction or (2ii) the presentation of such Note a Debt Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerwhichever occurs later;
(b) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, dutyassessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the Debt Securities;
(d) any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure by the holder or the beneficial owner of the Debt Security to comply with respect a request of the Payor addressed to the Notes;
(d) any taxholder to provide information, assessmentdocuments or other evidence concerning the nationality, withholding residence or deduction identity of the holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)above; or
(ii) nor will Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, interest on, such Note any Debt Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of that 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 under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that partnership such partnership, limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) holder of such Debt Security. The Company will make any required withholding or deduction Payor shall provide the Trustee with the official acknowledgment of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment authority (or, if such receipts are acknowledgment is not obtainableavailable, other evidence a certified copy thereof) evidencing the payment of payments reasonably satisfactory to the Trusteewithholding taxes by the Payor. Upon request, copies Copies of those receipts or other evidence of payments, as the case may be, will such documentation shall be made available by the Trustee to the Holders or beneficial owners holders of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture Debt Securities or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Pricepaying agent, if as applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10upon request therefor.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 2 contracts
Sources: Indenture Agreement (Cooper Industries LTD), Indenture Agreement (Cooper Crouse-Hinds, LLC)
Payment of Additional Amounts. (a) All payments and deliveries made If any taxes, assessments or other governmental charges are imposed by any jurisdiction where the Company or any a successor thereof (a "Payor") is organized or otherwise considered by a taxing authority to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company or any successor to the Company is, a resident for tax purposes, organized or otherwise resident or any jurisdiction from or through which the Payor makes a payment is made (or on the Securities, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy therein having the force power to tax (the "Relevant Tax Jurisdiction") in respect of law. In any payments under the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company shall Payor will pay to each Holder of a Security, to the extent it may lawfully do so, such additional amounts (“"Additional Amounts”") as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by specified in such Security to which such Holder is entitled; provided, however, the beneficial owner after such withholding or deduction (and after deducting Payor will not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(a1) any Any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, Tax Jurisdiction other than merely solely by the holding such Note of Notes or by the receipt of payments principal or interest in respect of the enforcement of rights thereunderNotes, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such Note a Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, whichever occurs later (in either case (x) or (y), except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note had the Security been presented for payment on any date during such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner);
(b2) any Any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c3) any Any tax, dutyassessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Security to comply with a reasonable and timely request of the Payor addressed to the Holder to provide information, documents or other evidence concerning the nationality, residence or identity of the Holder or such beneficial owner which is required by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
(4) Any tax, assessment or other governmental charge that is payable otherwise than by any deduction or withholding from payments under any payment of the principal of, or with respect to the Notesany premium or interest on, any Security;
(d5) any Any tax imposed on, or measured by, net income;
(6) Any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation assessment or other official guidance enacted in governmental charge required to be deducted or withheld by any jurisdiction implementing FATCA, Paying Agent from any intergovernmental agreement between payment of the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreementprincipal of, or any agreement with premium or interest on, any Security, if such payment can be made alternatively at the U.S. Internal Revenue Service under FATCA
(e) Holder's option without such deduction or withholding by any combination of taxes, duties, assessments or other governmental charges referred Paying Agent available to in such Holder at the preceding clauses (a), (b), (c) or (d)same time; or
(ii7) Any combination of the above; nor will Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, premium or interest on, such Note any Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of that 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 under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that partnership such partnership, limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder of such Security. The Payor will provide the Trustee with the official acknowledgment of the Relevant Tax Authority (or, if such acknowledgment is not available, a certified copy thereof.
(b) The Company evidencing the payment of the withholding taxes by the Payor. Copies of such documentation will make any required withholding or deduction of taxes and remit the full amount deducted or withheld be made available to the relevant taxing jurisdiction in accordance with applicable lawHolders of the Securities or the Paying Agents, as applicable, upon request therefor. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingwhich arise in any jurisdiction from the execution, in each case, interest and penalties) payable in respect delivery or registration of the creation, issue, offering, execution, delivery, registration, enforcement Securities or making payments in respect any other document or instrument referred to therein (other than a transfer of the NotesSecurities), or the receipt of any documentation payments with respect theretoto the Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not a Relevant Tax Jurisdiction, other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after Securities or any other such document or instrument following the occurrence and during the continuance of a default any Event of Default with respect to the Notes.
(d) Any reference Securities. All references in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Priceof, premium, if applicableany, and interest on the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to Securities will include any Additional AmountsAmounts payable by the Payor in respect of such principal, unless the context requires otherwisesuch premium, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10if any, and such interest.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (NCL CORP Ltd.)
Payment of Additional Amounts. (a) All payments of principal and deliveries interest made by the Company or any successor Issuer in respect of the Notes and made by the Guarantor in respect of the Intercompany Loan, and all payments pursuant to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversionGuarantee, 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 imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company British Virgin Islands or Hong Kong or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless such withholding or deduction of such Taxes is required by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that any such withholding or deduction is so requiredevent, the Company Issuer or any successor to the Company Guarantor, as applicable, shall pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure that the net amount received will result in receipt by the beneficial owner after holders of the Notes or the Issuer in respect of the Intercompany Loan, as the case may be, of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by payable to such beneficial owner holders or the Issuer, as the case may be, had no such withholding or deduction of such Taxes been required; provided , except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) in respect of any tax, duty, assessment or other governmental charge such Taxes that would not have been imposed imposed, deducted or withheld but for:
(1) for the existence of any present or former connection between the relevant Holder holder or beneficial owner of a Note or the Guarantee, as the case may be (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of power over, a holder or beneficial owner of a Note or the Guarantee, if such Note holder or beneficial owner is an estate, nominee, trust, partnership or corporation) and the Relevant Taxing JurisdictionBritish Virgin Islands or Hong Kong or any political subdivision or any authority thereof or therein or any territory or possession thereof or area subject to its jurisdiction, other as the case may be, otherwise than merely holding such Note or the receipt of payments Guarantee or the enforcement of rights thereunder, including, without limitation, such Holder receiving principal or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged interest in a trade or business therein or having or having had a permanent establishment thereinrespect thereof;
(2b) in respect of any Note or the presentation of such Note Guarantee presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided forrelevant date, except to the extent that the holder or beneficial owner of such Note thereof would have been entitled to such Additional Amounts on presenting such Note the same for payment on any date during the last day of such 30-day period; or. For this purpose, the "relevant date" in relation to any Note or the Guarantee means (i) the due date for payment thereof and (ii) if the full amount payable on such due date has not been received in The City of New York by the Trustee on or prior to such due date, the first date on which such full amount has been so received and notice to that effect has been given to the holders of the Notes;
(3c) in respect of any such Taxes withheld or deducted from any payment under or with respect to any Note or Guarantee: (i) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the failure taxation of savings implementing the conclusions of the Holder ECOFIN Council meeting of November 26- 27, 2000 or any law implementing or complying with, or introduced in order to conform to, such Directive or (ii) presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a Member State of the European Union;
(d) in respect of any such Taxes payable otherwise than by deduction or withholding from payments under or with respect to any Note or the Guarantee;
(e) in respect of any such Taxes that would not have been so imposed, deducted or withheld if the holder or beneficial owner to comply with of a timely request from Note or the Company Guarantee or the beneficial owner of any payment on such Note or the Guarantee had (i) made a declaration of non-residence or any successor of the Companyother claim or filing for exemption to which it is entitled or (ii) complied with any certification, addressed to the Holder or beneficial owner, as the case may be, to provide certificationidentification, information, documents documentation or other evidence reporting requirement concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, British Virgin Islands or to make Hong Kong of such holder or beneficial owner of such Note or the Guarantee or any payment on such Note or the Guarantee (provided that (x) such declaration of non-residence or satisfy any other reporting requirement relating to claim or filing for exemption or such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice the applicable law of the Relevant Taxing Jurisdiction British Virgin Islands or Hong Kong as a precondition to reduce exemption from, or eliminate any reduction in the rate of the imposition, deduction or withholding or deduction as of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which Additional Amounts would have otherwise such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the British Virgin Islands or Hong Kong, the holder of such Note or the Guarantee at that time has been payable notified by the Issuer, any Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to such Holder or beneficial ownerbe made);
(bf) in respect of any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments payment under or with respect to a Note or the Notes;
(d) Guarantee to any tax, assessment, withholding holder that is a fiduciary or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA partnership or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment such payment, Note or Guarantee, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment, Note or Guarantee would not have been entitled to such Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.actual holder of such Note;
(bg) The Company will make in respect of any required withholding estate, inheritance, gift, sales, excise, transfer or deduction personal property tax or similar tax, assessment or governmental charge; or
(h) any combination of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction items (a) through (g) above. Whenever there is mentioned, in accordance with applicable law. The Company will furnish to the trusteeany context, within 30 days after the date the payment of principal or interest in respect of any taxes so deducted Note, in respect of the Intercompany Loan or withheld is due pursuant in respect of the Guarantee, such mention shall be deemed to applicable law, either certified copies include the payment of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to Additional Amounts provided for herein or in the Trustee. Upon request, copies of those receipts or other evidence of paymentsIntercompany Loan, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingextent that, in each casesuch context, interest and penalties) Additional Amounts are, were or would be payable in respect of thereof pursuant hereto or in the creationIntercompany Loan, issue, offering, execution, delivery, registration, enforcement or making payments as the case may be. The foregoing provisions in respect of this Section 3.09 shall apply in the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default same manner with respect to the Notes.
jurisdiction in which any successor Person to the Issuer (dincluding any entity substituted in place of the Issuer, or of any previous substituted company, pursuant to Section 3.11) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note Guarantor is organized or any other amount payable with respect authority therein or thereof having the power to tax (a "Successor Jurisdiction") substituting such NoteSuccessor Jurisdiction for the British Virgin Islands or Hong Kong, shall be deemed to include any Additional Amounts, unless as the context requires otherwise, that are or case may be payable with respect to that amount under the obligations referred to in this Section 5.10be.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (PCCW LTD)
Payment of Additional Amounts. (a) All Any and all payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments a Holder of principal (including the Fundamental Change Repurchase Priceand premium, if applicableany) and interest in respect of the Securities will be made free and clear of, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any and all present or and future withholding taxes, duties, assessments assessments, levies, imposts or governmental charges of whatever nature ("Taxes") whatsoever imposed or levied by or within any jurisdiction in which on behalf of, the Company Cayman Islands or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Brazil or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company Guarantors, as the case may be, shall pay to each Holder such additional amounts (“the "Additional Amounts”") as may be necessary to ensure that will result in the net amount received receipt by the beneficial owner after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner had them if no such withholding or deduction had been required; provided , except that no such Additional Amounts shall be payablepayable in respect of any Security:
(i) held by, or by a third party on behalf of, a holder which is liable for such taxes, duties, assessments, levies, imposts or on account governmental charges in respect of such Security by reason of its (or a fiduciary, settlor, member or shareholder, beneficiary of:
(a, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any having some present or former connection between with the relevant Holder Cayman Islands or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner Brazil (including being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction the Cayman Islands or treated as a resident thereof Brazil or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;) other than the mere holding of such Security; or
(2ii) where (in the case of a payment of principal, premium, if any, or interest on the Maturity Date or date of earlier redemption) the presentation of such Note (in cases in which presentation relevant Security is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts if it had surrendered the relevant Security on presenting the last day of such Note for payment on any date during such 30-day periodperiod of 30 days; or
(3iii) if such tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment, levy, impost or governmental charge; or
(iv) if such amount is (a) payable other than by withholding from a payment on such Security, or (b) required to be withheld by a paying agent and such payment can be made without such withholding by any other paying agent; or
(v) if such tax, duty, assessment, levy, impost or governmental charge would not have been imposed but for the failure of the Holder or beneficial owner such holder to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide applicable certification, information, documents documentation or other evidence reporting requirements concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, Cayman Islands or to make any declaration Brazil of the Holder or satisfy any other reporting requirement relating to beneficial owner of such matters, Security if and to the extent that due and timely such compliance with such request is required by statute, regulation as a precondition to relief or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any exemption from withholding or deduction as to which Additional Amounts would have otherwise been payable to of all or part of such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding levy, impost or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(iivi) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, where such Note to withholding or deduction is imposed on a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be an individual and is required to be included made pursuant to Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the income under form of interest payments or any European Union Directive otherwise implementing the laws conclusions of the Relevant Taxing JurisdictionECOFIN Council meeting of 26 and 27 November 2000 or any law implementing or complying with, for tax purposesor introduced in order to conform to, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.Directive; or
(bvii) The Company will make any required withholding or deduction of taxes and remit in the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment case of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies combination of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notesitems (i) through (vi).
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All Any and all payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments a Holder of principal (including the Fundamental Change Repurchase Priceand premium, if applicableany) and interest in respect of the Securities will be made free and clear of, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any and all present or and future withholding taxes, duties, assessments assessments, levies, imposts or governmental charges of whatever nature (“Taxes”) whatsoever imposed or levied by or within any jurisdiction in which on behalf of, the Company Cayman Islands, Brazil or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Japan or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company Guarantors, as the case may be, shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the beneficial owner after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner had them if no such withholding or deduction had been required; provided , except that no such Additional Amounts shall be payablepayable in respect of any Security:
(i) held by, or by a third party on behalf of, a holder which is liable for such taxes, duties, assessments, levies, imposts or on account governmental charges in respect of such Security by reason of its (or a fiduciary, settlor, member or shareholder, beneficiary of:
(a, or possessor of a power over, such holder, if such holder is an estate, trust, partnership or corporation) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any having some present or former connection between with the relevant Holder Cayman Islands, Brazil or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner Japan (including being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction the Cayman Islands, Brazil or treated as a resident thereof Japan or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;) other than the mere holding of such Security; or
(2ii) where (in the case of a payment of principal, premium, if any, or interest on the Maturity Date or date of earlier redemption) the presentation of such Note (in cases in which presentation relevant Security is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts if it had surrendered the relevant Security on presenting the last day of such Note for payment on any date during such 30-day periodperiod of 30 days; or
(3iii) if such tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment, levy, impost or governmental charge; or
(iv) if such amount is (a) payable other than by withholding from a payment on such Security, or (b) required to be withheld by a paying agent and such payment can be made without such withholding by any other paying agent; or
(v) if such tax, duty, assessment, levy, impost or governmental charge would not have been imposed but for the failure of the Holder or beneficial owner such holder to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide applicable certification, information, documents documentation or other evidence reporting requirements concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing JurisdictionCayman Islands, Brazil or to make any declaration Japan of the Holder or satisfy any other reporting requirement relating to beneficial owner of such matters, Security if and to the extent that due and timely such compliance with such request is required by statute, regulation as a precondition to relief or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any exemption from withholding or deduction as to which Additional Amounts would have otherwise been payable to of all or part of such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding levy, impost or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(iivi) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, where such Note to withholding or deduction is imposed on a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be an individual and is required to be included made pursuant to Council Directive 200348/EC of 3 June 2003 on taxation of savings income in the income under form of interest payments or any European Union Directive otherwise implementing the laws conclusions of the Relevant Taxing JurisdictionECOFIN Council meeting of 26 and 27 November 2000 or any law implementing or complying with, for tax purposesor introduced in order to conform to, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.Directive; or
(bvii) The Company will make any required withholding or deduction of taxes and remit in the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment case of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies combination of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notesitems (i) through (vi).
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) 10.7.1 All payments of principal, premium and deliveries made by interest in respect of the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made without withholding or deduction for, or on account of, for any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company on behalf of Brazil or any successor Successor Jurisdiction or any authority therein or thereof having power to tax ("Foreign Taxes"), except to the Company isextent that such Foreign Taxes are required by Brazil, for tax purposes, organized or otherwise resident or from or through which payment is made (such Successor Jurisdiction or any political subdivision such authority to be withheld or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of lawdeducted. In the event that of any such withholding or deduction is so requiredfor any Foreign Taxes, the Company or any successor to the Company shall pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure that the net amount received will result in receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes Holders of Securities on the Additional Amounts) shall equal the respective due dates of such amounts that as would have been received by such beneficial owner them had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required; provided , except that no such Additional Amounts shall be payablepayable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or on account of:
other governmental charges which would not have been imposed but for (aA) a connection between the Holder and Brazil other than the mere holding of such Security and the receipt of payments with respect to such Security or (B) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, dutyof such Holder, if compliance is required by such Successor Jurisdiction, or any political subdivision or authority thereof or therein having power to tax as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionCompany has given the Holders at least 30 days' notice that Holders will be required to provide such certification, identification or other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinrequirement;
(2ii) the presentation in respect of any such Note taxes, duties, assessments or other governmental charges with respect to a Security surrendered (in cases in which presentation if surrender is required) more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided forfor and notice thereof given to Holders, whichever occurs later, except to the extent that the holder or beneficial owner Holder of such Note Security would have been entitled to such Additional Amounts on presenting surrender of such Note Security for payment on any date during the last day of such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(biii) any in respect of estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;charge imposed with respect to a Security; --------------------------------------------------------------------------------
(civ) in respect of any tax, duty, assessment or other governmental charge that is payable otherwise than by deduction or withholding from payments under on any series of Securities or with by direct payment by the Company in respect to of claims made against the NotesCompany;
(dv) any tax, assessment, where such withholding or deduction is imposed on a payment to an individual and is required by FATCAto be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA 2000 or any law enacted by such other jurisdiction to give effect to such agreementimplementing or complying with, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxesintroduced in order to conform to, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)such directive; or
(iivi) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect any combination of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notesabove.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. (a) All In the event that any payments due and deliveries made by payable on the Company Bonds, or any successor delivery of Shares or other cash payment (if any) on conversion of the Bonds, is subject to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever whatsoever nature imposed (“Taxes”) imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of Singapore, France or the Company United States or any successor to the Company is, for tax purposes, organized or otherwise resident or other jurisdiction from or through which any payment is made on the Bonds (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”Authority thereof), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (the “Additional Amounts”) in respect of such payments as may be necessary to ensure in order that the net amount amounts received by the beneficial owner Holders after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that would have been received by such beneficial owner had no receivable in respect of the Bonds in the absence of such withholding or deduction been required; provided deduction, except that no such Additional Amounts shall be payable:
(i) payable for or on account of:
(a) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1i) the existence of any present or former connection between the relevant Holder or and/or the beneficial owner of such Note Bond and Singapore, France or the Relevant Taxing JurisdictionUnited States, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunderBond, including, without limitation, including such Holder or and/or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;; or
(2ii) the presentation of such Note Bond (in cases in which if presentation is required) more than 30 thirty (30) days after the later of the date on which the any payment on such Bond became due and payable pursuant to the terms thereof or the date that such payment was made or duly provided for, except to the extent that the holder or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting if it had presented such Note Bond for payment on any date during within such thirty (30-) day period; or
(3iii) the failure presentation of such Bond (if presentation is required) for payment in the Holder or beneficial owner to comply with a timely request from the Company or any successor of the CompanyUnited States, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning unless such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would Bond could not have otherwise been payable to such Holder or beneficial owner;presented for payment elsewhere; or
(b) any estate, inheritance, gift, sale, transfer, excisestamp, personal property or similar tax, assessment or other governmental charge;charge including without limitation withholding or deduction imposed on a payment to an individual and required to be made pursuant to any European Union Directive 2003/48/EC on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27 2000 or any law implementing or complying with such Directive; or
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure to comply by the Holder or the beneficial owner of the Bond with respect a request by the Company addressed to the Notes;Holder to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner, or to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or a part of such tax, assessment or other governmental charge; or
(d) any tax, assessment, presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction required by FATCA, any current presenting the relevant Bond to another Paying Agent or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted Conversion Agent in any jurisdiction implementing FATCA, any intergovernmental agreement between a Member State of the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCAEuropean Union; or
(e) any combination of taxes, duties, assessments or other governmental charges Taxes referred to in the preceding sub-clauses (a), (b), (c) or and (d); or
(ii) with respect . The Company's obligation hereunder to any payment of pay the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership Amounts resulted from tax deduction or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income withholding under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect United States shall cease upon the Holders' election not to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled their Bonds redeemed under Section 3.6. Any reference in this Indenture to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes payment due and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement Bonds or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) Shares upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Bonds shall be deemed also to include any such Additional Amounts, unless the context requires otherwise, Amounts that are or may be payable in accordance with respect to that amount the provisions described in this Indenture and under the obligations referred to in this Section 5.10terms of the Bonds.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Aerkomm Inc.)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or If any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed by the jurisdiction where the Payor is organized or levied by or within any jurisdiction in which the Company or any successor otherwise considered to the Company is, be a resident for tax purposes, organized or otherwise resident or any jurisdiction from or through which the Payor makes a payment is made (or on the Notes, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy therein having the force power to tax (the "Relevant Tax Jurisdiction") in respect of law. In any payments under the event that any such withholding or deduction is so requiredNotes, the Company or any successor to the Company shall Payor will pay to each Holder holder of a Note, to the extent it may lawfully do so, such additional amounts (“"Additional Amounts”") as may be necessary to ensure in order that the net amounts paid to such holder will be not less than the amount received by specified in such Note to which such holder is entitled; provided, however, that the beneficial owner after such withholding or deduction (and after deducting Payor will not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(ai) any Any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant Holder such holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note holder, if such holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing JurisdictionTax Jurisdiction including such holder (or such fiduciary, other than merely holding such Note settlor, beneficiary, member, shareholder or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such a Note (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerwhichever occurs later;
(bii) any Any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(ciii) any Any tax, dutyassessment or other governmental charge which is payable otherwise than by withholding from payment of principal of, premium, if any, or any interest on, the Notes;
(iv) Any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure by the holder or the beneficial owner of a Note to comply with respect a request of the Payor addressed to the Notes;
(d) any taxholder to provide information, assessmentdocuments or other evidence concerning the nationality, withholding residence or deduction identity of the holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or other official guidance enacted in any administrative practice of the taxing jurisdiction implementing FATCAas a precondition to exemption from all or part of such tax, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments assessment or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(iiv) with respect to any payment Any combination of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.above;
Appears in 1 contract
Sources: Senior Working Capital Credit Agreement (Primacom Ag)
Payment of Additional Amounts. (a) All Any and all payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments a Holder of principal (including the Fundamental Change Repurchase Priceand premium, if applicableany) and interest in respect of the Securities, and any and all payments to indemnify a Holder for taxes or duties as a result of a substitution of the Redemption Priceissuer, if applicableas provided in Section 14.1(a)(ii), payments of interest, including any Additional Interestwill be made free and clear of, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any and all present or and future withholding taxes, duties, assessments assessments, levies, imposts or governmental charges of whatever nature (“Taxes”) whatsoever imposed or levied by or within any jurisdiction in which the Company on behalf of Brazil or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Japan or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company Guarantors, as the case may be, shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the beneficial owner after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner had them if no such withholding or deduction had been required; provided , except that no such Additional Amounts shall be payablepayable in respect of any Security:
(i) held by, or by a third party on behalf of, a Holder which is liable for such taxes, duties, assessments, levies, imposts or on account governmental charges in respect of such Security by reason of its (or a fiduciary, settlor, member or shareholder, beneficiary of:
(a, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any having some present or former connection between the relevant Holder with Brazil or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner Japan (including being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction Brazil or treated as a resident thereof Japan or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;) other than the mere holding of such Security; or
(2ii) where (in the case of a payment of principal, premium, if any, or interest on a redemption date) the presentation of such Note (in cases in which presentation relevant Security is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts if it had surrendered the relevant Security on presenting the last day of such Note for payment on any date during such 30-day periodperiod of 30 days; or
(3iii) if such tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment, levy, impost or governmental charge; or
(iv) if such amount is (a) payable other than by withholding from a payment on such Security, or (b) required to be withheld by a paying agent and such payment can be made without such withholding by any other paying agent; or
(v) if such tax, duty, assessment, levy, impost or governmental charge would not have been imposed but for the failure of the such Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide applicable certification, information, documents documentation or other evidence reporting requirements concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with Brazil or Japan of the Relevant Taxing Jurisdiction, Holder or to make any declaration or satisfy any other reporting requirement relating to beneficial owner of such matters, Security if and to the extent that due and timely such compliance with such request is required by statute, regulation as a precondition to relief or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any exemption from withholding or deduction as to which Additional Amounts would have otherwise been payable to of all or part of such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding levy, impost or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(iivi) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, where such Note to withholding or deduction is imposed on a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be an individual and is required to be included made pursuant to Council Directive 200348/EC of 3 June 2003 on taxation of savings income in the income under form of interest payments or any European Union Directive otherwise implementing the laws conclusions of the Relevant Taxing JurisdictionECOFIN Council meeting of 26 and 27 November 2000 or any law implementing or complying with, for tax purposesor introduced in order to conform to, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.Directive; or
(bvii) The Company will make any required withholding or deduction of taxes and remit in the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment case of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies combination of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notesitems (i) through (vi).
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Votorantim Cimentos S.A.)
Payment of Additional Amounts. (a) All payments and deliveries made by interest amounts payable in respect of the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Notes shall be made without deduction or withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments duties or governmental charges of whatever any nature whatsoever imposed or levied by way of deduction or within any jurisdiction in which withholding by or on behalf of the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Tax Jurisdiction (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing JurisdictionWithholding Taxes”), unless such deduction or withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any of such withholding or deduction is so requiredon payments of interest (but not in respect of the payment of any principal in respect of the Notes), the Company or any successor Issuer shall, to the Company shall fullest extent permitted by law, pay to each Holder such additional amounts (“Additional Amounts”) as may will be necessary to ensure in order that the net amount amounts received by the beneficial owner Holders, after such withholding or deduction (and after deducting for or on account of any taxes on Withholding Taxes imposed upon or as a result of such payment by the Additional Amounts) shall Tax Jurisdiction, will equal the respective amounts that which would otherwise have been received by such beneficial owner had no receivable in the absence of such withholding or deduction been requireddeduction; provided except that no such Additional Amounts shall be payable:
(i) for or payable on account ofof any taxes, duties or governmental charges which:
(a) are payable by any person acting as custodian bank or collecting agent on the Holder’s or the beneficial owner’s behalf, or otherwise in any manner which does not constitute a deduction or withholding by the Issuer from payments of interest made by the Issuer; or
(b) in the case of U.S. federal income taxes, are imposed on interest received by or on behalf of (1) a 10-percent shareholder (as defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of 1986 (the “Code”) and the regulations that may be promulgated thereunder) of the Issuer, (2) a controlled foreign corporation that is related to the Issuer 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, duty, assessment or other governmental charge that would not have been imposed but for:
for the Holder’s or beneficial owner’s status as described in clauses (1) through (3) of this paragraph; or
(c) would not be payable to the existence of any present extent such deduction or former connection between withholding could be avoided or reduced if the relevant Holder or beneficial owner of such the Note and (or any financial institution through which the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being holds the Notes or having been through which payment on the Note is made) (i) makes a national, domiciliary declaration of non-residence or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant other similar claim for exemption to the terms thereof relevant tax authority or was made complies with any reasonable certification, documentation, information or duly provided forother reporting requirement imposed by the relevant tax authority or (ii) enters into or complies with any applicable certification, except to identification, information, documentation, registration, or other reporting requirement or agreement concerning accounts maintained by the extent that the holder Holder or beneficial owner of (or 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
(3financial institution) the failure or concerning ownership of the Holder or beneficial owner to comply with a timely request from the Company (or any successor of the Company, addressed to the Holder financial institution) or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s (or such financial institution’s) nationality, residence, identity or connection with the Relevant Taxing Jurisdictionjurisdiction imposing such tax; or
(d) are payable by reason of the Holder’s or the beneficial owner’s having, or having had, some personal or business connection with the Tax Jurisdiction and not merely by reason of the fact that payments in respect of the Notes are, or for purposes of taxation are deemed to make any declaration be, derived from sources in, or satisfy any other reporting requirement relating to such mattersare secured in, if and the Tax Jurisdiction; or
(e) are presented for payment more than 30 days after the Relevant Date except to the extent that due and timely compliance with such request is required by statute, regulation the Holder or administrative practice the beneficial owner would have been entitled to Additional Amounts on presenting the same for payment on the last day of the Relevant Taxing Jurisdiction period of 30 days assuming that day to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)a Business Day; or
(iif) with respect to any are deducted or withheld by a paying agent from a payment of if the principal of payment could have been made by another paying agent without such deduction or withholding; or
(including g) would not be payable if the Fundamental Change Repurchase Price, if applicableNotes had been kept in safe custody with, and the Redemption Pricepayments had been collected by, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, banking institution; or
(h) are payable by reason of a beneficiary change in law or settlor with respect to the fiduciary, a member of practice that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within becomes effective more than 30 days after the date the relevant payment of any taxes so deducted interest becomes due, or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners duly provided for and notice thereof is given in accordance with Section 11.04 of the Notes.
(c) the Company will pay any stampBase Subordinated Indenture, issue, registration, court, documentary or value added taxes, whichever occurs later. No Additional Amounts or any other excise amounts will be payable on account of any such withholding or property taxesdeduction in respect of payments of principal. Moreover, charges or similar levies (including, in each case, interest and penalties) all amounts payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect Notes shall be made subject to compliance with Sections 1471 through 1474 of the NotesCode, or any documentation regulations or other official guidance promulgated thereunder, official interpretations thereof, or any applicable agreement entered into in connection therewith (including any agreement, law, regulation, or other official guidance implementing such agreement) (commonly referred to as the “Foreign Account Tax Compliance Act” or “FATCA”) and any applicable agreement described in Section 1471(b) of the Code. The Issuer shall have no obligation to pay Additional Amounts or otherwise indemnify a Holder or beneficial owner in connection with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, compliance with the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the NotesCode.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Eighth Supplemental Subordinated Indenture (Deutsche Bank Aktiengesellschaft)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or Issuer, Tyco International and any successor to the Company other Guarantor under or with respect to this Indenture the Securities and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Guarantees will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Taxing Authority (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless the Issuer, Tyco International or such withholding or deduction Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that the Issuer, Tyco International or such Guarantor is required to so withhold or deduct any such withholding amount for or deduction is so requiredon account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the case may be, the Company Issuer, Tyco International or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure so that the net amount received by the beneficial owner each Holder of Securities (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall will equal the amounts amount that such Holder would have received if such Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account ofpayable with respect to a payment made to a Holder of Securities to the extent:
(a) that any tax, duty, assessment or other governmental charge that such Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between such holder and the relevant Holder or beneficial owner Taxing Authority imposing such Taxes (other than the mere receipt of such Note and the Relevant Taxing Jurisdictionpayment, other than merely holding acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder such Securities, including, without limitation, such Holder the Guarantees or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinthis Indenture);
(2b) of any estate, inheritance, gift, sales, transfer, or personal property Tax imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Note Securities (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
or (3d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the failure making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the Holder relevant Taxing Authority as a precondition to an exemption from, or beneficial owner to comply with a timely request from reduction in, the Company or any successor of the Companyrelevant Taxes, addressed and (y) at least 60 days prior to the Holder first payment date with respect to which the Issuer, Tyco International or beneficial ownersuch Guarantor shall apply this clause (d), the Issuer, Tyco International or such Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The Issuer, Tyco International or such Guarantor, as applicable, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Authority in accordance with all applicable laws. The Issuer, Tyco International or such Guarantor, as applicable, will use their reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer, Tyco International or such Guarantor, as the case may be, to provide certificationwill, informationupon request, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and available to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice Holders of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trusteeSecurities, within 30 60 days after the date the payment of any taxes Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Issuer, if Tyco International or such receipts Guarantor or if, notwithstanding the Issuer's, Tyco International's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments reasonably satisfactory by the Issuer, Tyco International or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the TrusteeSecurities is due and payable, if the Issuer, Tyco International or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer, Tyco International or such Guarantor will deliver to the Trustee an Officer's Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Securities on the payment date. Upon requestThe foregoing provisions shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer, copies of those receipts Tyco International or other evidence of paymentssuch Guarantor, as the case may be, will be made available by is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company Issuer will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Luxembourg or the United States or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable the foregoing in respect of the creation, issue, offering, executionenforcement, delivery, registration, enforcement redemption or making payments in respect retirement of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference Securities. Whenever in this Indenture or the Notes Securities there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of (including the Fundamental Change Repurchase Priceprincipal, if applicableredemption price, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note interest or any other amount payable under or with respect to any Security, such Note, mention shall be deemed to include any mention of the payment of Additional AmountsAmounts to the extent that, unless the context requires otherwisein such context, that are Additional Amounts are, were or may would be payable with in respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.thereof. ARTICLE THIRTEEN
Appears in 1 contract
Payment of Additional Amounts. (a) All payments of principal and deliveries interest made by the Company or any successor Issuer in respect of the Notes and made by the Guarantor in respect of the Intercompany Loan, and all payments pursuant to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversionGuarantee, 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 imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company British Virgin Islands or Hong Kong or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless such withholding or deduction of such Taxes is required by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that any such withholding or deduction is so requiredevent, the Company Issuer or any successor to the Company Guarantor, as applicable, shall pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure that the net amount received will result in receipt by the beneficial owner after holders of the Notes or the Issuer in respect of the Intercompany Loan, as the case may be, of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by payable to such beneficial owner holders or the Issuer, as the case may be, had no such withholding or deduction of such Taxes been required; provided , except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) in respect of any tax, duty, assessment or other governmental charge such Taxes that would not have been imposed imposed, deducted or withheld but for:
(1) for the existence of any present or former connection between the relevant Holder holder or beneficial owner of such a Note or the Guarantee, as the case may be, and the Relevant Taxing JurisdictionBritish Virgin Islands or Hong Kong or any political subdivision or any authority thereof or therein or any territory or possession thereof or area subject to its jurisdiction, other as the case may be, otherwise than merely holding such Note or the receipt of payments Guarantee or the enforcement of rights thereunder, including, without limitation, such Holder receiving principal or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged interest in a trade or business therein or having or having had a permanent establishment thereinrespect thereof;
(2b) in respect of any Note or the presentation of such Note Guarantee presented for payment (in cases in which where presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided forrelevant date, except to the extent that the holder or beneficial owner of such Note thereof would have been entitled to such Additional Amounts on presenting such Note the same for payment on any date during the last day of such 30-day period; or. For this purpose, the "relevant date" in relation to any Note or the Guarantee means (i) the due date for payment thereof and (ii) if the full amount payable on such due date has not been received in The City of New York by the Trustee on or prior to such due date, the first date on which such full amount has been so received and notice to that effect has been given to the holders of the Notes;
(3c) in respect of any such Taxes withheld or deducted from any payment under or with respect to any Note or Guarantee: (i) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any Directive implementing the failure conclusions of the Holder ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive or (ii) presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another paying agent in a Member State of the European Union;
(d) in respect of any such Taxes payable otherwise than by deduction or withholding from payments under or with respect to any Note or the Guarantee;
(e) in respect of any such Taxes that would not have been so imposed, deducted or withheld if the holder or beneficial owner to comply with of a timely request from Note or the Company Guarantee or the beneficial owner of any payment on such Note or the Guarantee had (i) made a declaration of non-residence or any successor of the Companyother claim or filing for exemption to which it is entitled or (ii) complied with any certification, addressed to the Holder or beneficial owner, as the case may be, to provide certificationidentification, information, documents documentation or other evidence reporting requirement concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, British Virgin Islands or to make any Hong Kong of such holder or beneficial owner of such Note or the Guarantee (provided that (x) such declaration of non-residence or satisfy any other reporting requirement relating to claim or filing for exemption or such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice the applicable law of the Relevant Taxing Jurisdiction British Virgin Islands or Hong Kong as a precondition to reduce exemption from, or eliminate any reduction in the rate of the imposition, deduction or withholding or deduction as of, such Taxes and (y) at least 30 days prior to the first payment date with respect to which Additional Amounts would have otherwise such declaration of non-residence or other claim or filing for exemption or such compliance is required under the applicable law of the British Virgin Islands or Hong Kong, the holder of such Note or the Guarantee at that time has been payable notified by the Issuer, the Guarantor or any other person through whom payment may be made that a declaration of non-residence or other claim or filing for exemption or such compliance is required to such Holder or beneficial ownerbe made);
(bf) in respect of any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments payment under or with respect to a Note or the Notes;
(d) Guarantee to any tax, assessment, withholding holder that is a fiduciary or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA partnership or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment such payment, Note or Guarantee, to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment, Note or Guarantee would not have been entitled to such Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.actual holder of such Note or Guarantee;
(bg) The Company will make in respect of any required withholding estate, inheritance, gift, sales, excise, transfer or deduction personal property tax or similar tax, assessment or governmental charge; or
(h) any combination of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction items (a) through (g) above. Whenever there is mentioned, in accordance with applicable law. The Company will furnish to the trusteeany context, within 30 days after the date the payment of principal or interest in respect of any taxes so deducted Note, the Intercompany Loan or withheld is due pursuant the Guarantee, such mention shall be deemed to applicable law, either certified copies include the payment of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to Additional Amounts provided for herein or in the Trustee. Upon request, copies of those receipts or other evidence of paymentsIntercompany Loan, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingextent that, in each casesuch context, interest and penalties) Additional Amounts are, were or would be payable in respect of thereof pursuant hereto or in the creationIntercompany Loan, issue, offering, execution, delivery, registration, enforcement or making payments as the case may be. The foregoing provisions in respect of this Section 3.09 shall apply in the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default same manner with respect to the Notes.
jurisdiction in which any successor Person to the Issuer (dincluding any entity substituted in place of the Issuer, or of any previous substituted company, pursuant to Section 3.12) Any reference in this Indenture or the Notes in Guarantor is organized or any context authority therein or thereof having the power to the delivery of ADSs tax (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicablea "Successor Jurisdiction"), and any premium substituting such Successor Jurisdiction for the British Virgin Islands or interestHong Kong, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless as the context requires otherwise, that are or case may be payable with respect to that amount under the obligations referred to in this Section 5.10be.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (PCCW LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to the Company ----------------------------- Issuer under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall a Note or Notes will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Taxing Authority (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless such withholding or deduction the Issuer is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that the Issuer is required to so withhold or deduct any such withholding amount for or deduction is so requiredon account of any Taxes from any payment made under or with respect to a Note or Notes, the Company or any successor to the Company shall Issuer will pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure so that the net amount received by the beneficial owner Holder (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall will equal the amounts amount that the Holder would have received if such Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account ofpayable with respect to a payment made the Holder to the extent:
(a) that any tax, duty, assessment or other governmental charge that such Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder and the Taxing Authority imposing such Taxes (other than the mere receipt of such payment, acquisition, ownership or beneficial owner disposition of such Note and or Notes or the Relevant Taxing Jurisdiction, other than merely holding exercise or enforcement of rights under such Note or the receipt of payments Notes or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinthis Master Loan Agreement);
(2b) of any estate, inheritance, gift, sales, transfer, or personal property Tax imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Note Notes (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Notes been presented for payment on any date during such 30-day period; or
(3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant relevant Taxing Jurisdiction Authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes, and (y) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment date with respect to the Notes;
which this clause (d) any taxshall apply, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if Issuer shall have notified the Holder is a fiduciary, partnership or person other than in writing that the sole beneficial owner of that payment to the extent that such payment would Holder shall be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary provide such declaration or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to claim. The Issuer will also (i) make such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant taxing jurisdiction Taxing Authority in accordance with all applicable lawlaws. The Company Issuer will furnish use its reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer will, upon request, make available to the trusteeHolder, within 30 60 days after the date the payment of any taxes Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Issuer, if or if, notwithstanding the Issuer's efforts to obtain such receipts receipts, the same are not obtainable, other evidence of such payments reasonably satisfactory by the Issuer. At least 30 days prior to each date on which any payment under or with respect to the Trustee. Upon requestNotes is due and payable, copies of those receipts or other evidence of payments, as if the case may be, Issuer will be made available by obligated to pay Additional Amounts with respect to such payment, the Trustee Issuer will deliver to the Holders or beneficial owners Holder an Officers' Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable. The foregoing provisions shall survive any termination of the Notes.
(c) discharge of this Master Loan Agreement and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company Issuer is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Issuer will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United States or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable the foregoing in respect of the creation, issue, offering, executionenforcement, delivery, registration, enforcement redemption or making payments in respect retirement of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference Note. Whenever in this Indenture Master Loan Agreement or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of (including the Fundamental Change Repurchase Priceprincipal, if applicableredemption price, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note interest or any other amount payable under or with respect to such any Note, such mention shall be deemed to include any mention of the payment of Additional AmountsAmounts to the extent that, unless the context requires otherwisein such context, that are Additional Amounts are, were or may would be payable with in respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.thereof. ARTICLE ELEVEN
Appears in 1 contract
Sources: Master Loan Agreement (Tycom LTD)
Payment of Additional Amounts. (a) All payments of principal, premium, if any, and deliveries interest, if any, made by the Company or any successor to the Company under or with respect to this Indenture and the Notesa Paying Agent, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if as applicable, and the Redemption Price, if applicable), payments of interest, including on any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxesincome, dutiesstamp or other tax, assessments duty, levy, impost, assessment or other similar governmental charges of whatever nature charge imposed or levied by or within on behalf of the government of the the Home Country Jurisdiction, of any jurisdiction in which territory of the Company Home Country Jurisdiction or by any successor authority or agency therein or thereof having the power to the Company istax (collectively, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing JurisdictionTaxes”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or a Paying Agent is required to withhold or deduct Taxes by law.
(b) If the Company or a withholding agent is required to withhold or deduct any successor to amount for or on account of Taxes from any payment made in respect of the Securities, the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure such that the net amount received by the beneficial owner each Holder (including Additional Amounts), after such withholding or deduction (and after deducting any taxes on deduction, shall not be less than the Additional Amounts) shall equal amount the amounts that Holder would have received if the Taxes had not been received by such beneficial owner had no such withholding withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payablepayable with respect to Taxes:
(i1) for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) for the existence of any present or former connection between the relevant such Holder or beneficial owner of the Securities and such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note Home Country Jurisdiction or the receipt of payments any political subdivision or the enforcement of rights thereunderterritory or possession thereof or therein or area subject to its jurisdiction, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction thereof or treated as a resident thereof or domiciled thereof or a national thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any are estate, inheritance, gift, salesales, transfer, excisepersonal property, personal property wealth or similar taxtaxes, assessment duties, levies, imposts, assessments or other similar governmental chargecharges;
(c3) any tax, duty, assessment or payable other governmental charge that is payable otherwise than by withholding from payments under of principal and premium, if any, or with respect to interest, if any, on the NotesSecurities;
(d4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any taxcertification, assessmentidentification, withholding information, documentation or deduction other reporting requirement to the extent:
(i) such compliance is required by FATCA, any current applicable law or future Treasury Regulations official administrative practice or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction an applicable treaty as a precondition to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreementexemption from, or any agreement with reduction in, the U.S. Internal Revenue Service under FATCA
rate of deduction or withholding of such Taxes (e) any combination of taxesincluding, dutieswithout limitation, assessments a certification that the Holder or other governmental charges referred to beneficial owner is not resident in the preceding clauses (a), (b), (c) or (dHome Country Jurisdiction); orand
(ii) at least thirty (30) days before the first payment date with respect to which such Additional Amounts shall be payable, the Company shall have notified such recipient in writing that such recipient shall be required to comply with such requirement;
(5) that 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, whichever occurred later;
(6) that are imposed with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including on a Security to any Additional Interest, on, such Note to a Holder, if the Holder who is a fiduciary, partnership partnership, limited liability company or other fiscally transparent entity or person other than the sole beneficial owner of that such payment and to the extent that such payment no Additional Amounts would be required to be included in have been payable had the income under the laws beneficial owner of the Relevant Taxing Jurisdictionapplicable Security been the Holder of such note;
(7) that are imposed or withheld pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, for tax purposesas amended (the “Code”), as of the issue date of the Securities (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law, or regulation, rule or practice adopted pursuant to or implementing an intergovernmental agreement between a beneficiary or settlor non-U.S. jurisdiction and the United States with respect to the fiduciary, a member foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code;
(8) that partnership or a beneficial owner who would not have been entitled imposed if presentation for payment of the relevant Securities had been made to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been a Paying Agent other than the Holder thereof.Paying Agent to which the presentation was made;
(b9) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available Taxes imposed by the Trustee to the Holders United States or beneficial owners any political subdivision thereof; or
(10) any combination of the Notesforegoing clauses (1) through (9).
(c) All references in this Indenture to the payment of the principal of or premium, if any, 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.
(d) The obligations of the Company to pay Additional Amounts if and when due will pay any stampsurvive the termination of this Indenture and the payment of all other amounts in respect of the Securities.
(e) If, issueas a result of the Company’s consolidation, registration, court, documentary merger with or value added taxes, or any conversion into a successor Person organized under the laws of a jurisdiction other excise or property taxes, charges or similar levies than the United Kingdom (includingor, in each case, interest any political subdivision or taxing authority thereof) or the conveyance, transfer or lease by the Company of its assets substantially as an entirety to such successor Person, and penalties) payable in respect such an entity expressly assumes the obligations of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in Company under this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Securities such successor Person will pay Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless Amounts on the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to same basis set forth in this Section 5.101007, except that references to a “Home Country Jurisdiction” will be treated as references to the United Kingdom and the country in which such successor Person is organized or resident (or deemed resident for tax purposes).
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (TechnipFMC PLC)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or If any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed or levied by or within any jurisdiction in which where the Company Company, a Subsidiary Guarantor or any a successor of either (a “Payor”) is organized or otherwise considered by a taxing authority to the Company is, be a resident for tax purposes, organized or otherwise resident or any jurisdiction from or through which the Payor makes a payment is made (or on the Securities, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) therein having the power to tax (each, as applicable, a the “Relevant Taxing Tax Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having ) in respect of any payments under the force of law. In the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company shall Payor will pay to each Holder of a Security, to the extent it may lawfully do so, such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by the beneficial owner after specified in such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by Security to which such beneficial owner had no such withholding or deduction been requiredHolder is entitled; provided that no the Payor will not be required to make any payment of Additional Amounts shall be payable:
(i) for or on account of:
(a1) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, Tax Jurisdiction including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such Note a Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, whichever occurs later (in either case (x) or (y), except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note had the Security been presented for payment on any date during such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner);
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c3) any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure by the Holder or the beneficial owner of the Security to comply with respect a reasonable and timely request of the Payor addressed to the Notes;
(d) any taxHolder to provide information, assessmentdocuments or other evidence concerning the nationality, withholding residence or deduction identity of the Holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(e4) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)above; or
(ii) nor will Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, premium or interest on, such Note to a Holderany Security where, if had the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in Security been the income under the laws Holder of the Relevant Taxing JurisdictionSecurity, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who it would not have been entitled to such payment of Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
by reason of any of clauses (b1) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law(4) inclusive above. The Company Payor will furnish to provide the trustee, within 30 days after Trustee with the date official acknowledgment of the payment taxing authority of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment the Relevant Tax Jurisdiction (or, if such receipts are acknowledgment is not obtainableavailable, other evidence a certified copy thereof) evidencing the payment of payments reasonably satisfactory to the Trusteewithholding taxes by the Payor. Upon request, copies Copies of those receipts or other evidence of payments, as the case may be, such documentation will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) Securities or the Paying Agents, as applicable, upon request therefor. The Company and the Subsidiary Guarantors will pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingwhich arise in any jurisdiction from the execution, in each case, interest and penalties) payable in respect delivery or registration of the creation, issue, offering, execution, delivery, registration, enforcement Securities or making payments in respect any other document or instrument referred to therein (other than a transfer of the NotesSecurities), or the receipt of any documentation payments with respect theretoto the Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than (a) any jurisdiction where the Company or any Subsidiary Guarantor is organized or otherwise considered by a Relevant Taxing Jurisdiction except taxing authority to be a resident for tax purposes or (b) any jurisdiction in which a paying agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes after Securities or any other such document or instrument following the occurrence and during the continuance of a default any Event of Default with respect to the Notes.
(d) Any reference in this Indenture Securities. At least 30 days prior to each date on which any payment under or the Notes in any context with respect to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase PriceSecurities is due and payable, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Company becomes obligated to pay Additional Interest, on, any Note or any other amount payable Amounts with respect to such Notepayment, shall the Company will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be deemed payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee to pay such Additional Amounts to the Holders of the Securities on the payment date. All references in this Indenture to principal of, premium, if any, and interest on the Securities will include any Additional AmountsAmounts payable by the Payor in respect of such principal, unless the context requires otherwisesuch premium, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) if any, and such interest. The foregoing obligations shall will survive termination any termination, defeasance or discharge of this IndentureIndenture and will apply mutatis mutandis to any jurisdiction in which any successor to a Payor is organized or any political subdivision or taxing authority or agency thereof or therein.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuers will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the "Additional Amounts") as may be necessary in order that every net payment or deemed payment of (i) principal, premium and interest, if any, with respect to this Indenture and a Security, or (ii) net proceeds on the Notessale or exchange of a Security, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided PROVIDED, HOWEVER, that no such Additional Amounts shall be payablepayable in respect of any Security for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Security;
(2b) the presentation of presented such Note Security for payment in The Bahamas or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Security for payment more than 30 days after the later of the date on which the payment in respect of such Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note Security for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orSecurity;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Security to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.Security; or
(b4) The Company will make any required withholding or deduction combination of taxes items (1), (2) and remit the full amount deducted or withheld to the relevant taxing jurisdiction (3). Whenever there is mentioned herein in accordance with applicable law. The Company will furnish to the trusteeany context, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and or any premium or interest, including any Additional Interest, interest on, or in respect of, any Note Security or the net proceeds received on the sale or exchange of any other amount payable with respect to Security, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts provided for in the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the Indenture. Without limiting a Holder's right to receive payment of Additional Amounts, unless in the context requires otherwise, event that are or may be payable Additional Amounts actually paid with respect to the Securities are based on rates of deduction or withholding of Bahamian taxes in excess of the appropriate rate applicable to the Holder of such Securities and, as a result thereof, such Holder of Securities is entitled to make a claim for a refund or credit of such excess, then such Holder of Securities shall, by accepting the Securities and receiving a payment of Additional Amounts, 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 Issuers. By making such assignment, the Holder of Securities makes no representation or warranty that amount under the obligations referred Issuers will be entitled to in this Section 5.10receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Ggri Inc)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to Issuers in respect of the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever nature whatsoever nature, including penalties, interest and any other liabilities related thereto (“Taxes”), imposed or levied by or within any jurisdiction in which the Company on behalf of The Netherlands or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (relevant jurisdiction or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”)therein having power to tax, unless such withholding or deduction is required the Issuers are compelled by law to deduct or by regulation withhold such taxes, duties, assessments or other governmental policy having the force of lawcharges. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company Issuers shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount amounts received by the beneficial owner Holders of the Securities after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts of principal and interest that would have been received by such beneficial owner had no receivable in respect of the Securities in the absence of such withholding or deduction been required; provided deduction, except that no such Additional Amounts shall be payable:
payable in respect of any Security (i) presented for payment of principal more than 60 days after the later of (x) the date on which such payment first became due and (y) if the full amount payable has not been received in New York City by the Trustee on or prior to such due date, the date on account of:
which, the full amount having been so received, notice to that effect shall have been given to the Securityholders by the Trustee, except to the extent that the Securityholder would have been entitled to such Additional Amounts on presenting such Security for payment on the last day of the applicable 60 day period; (aii) if any tax, duty, assessment or other governmental charge that would not have been is imposed but for:
(1) or withheld by reason of the existence failure to comply by the Securityholder or, if different, the beneficial owner of the interest payable on the Security with a timely request of the Issuers addressed to such Holder to provide information, documents or other evidence concerning the nationality, residence, identity or connection with The Netherlands or any present or former connection between the relevant jurisdiction of such Holder or beneficial owner which is required or imposed by a statute, treaty, regulation or administrative practice of The Netherlands or any relevant jurisdiction as a precondition to exemption from all or part of such Note and the Relevant Taxing Jurisdictiontax, assessment or governmental charge; (iii) held by or on behalf of a Securityholder who is liable for Taxes in respect of such Security by reason of having some connection with The Netherlands or any relevant jurisdiction (or any political subdivision or authority thereof) other than merely the mere purchase, holding such Note or disposition of any Security, or the receipt of payments principal or the enforcement of rights thereunderinterest in respect thereof, including, without limitation, such Holder or beneficial owner Securityholder being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
; (2iv) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that such Additional Amounts exceed the holder Additional Amounts that would have been payable had such Securityholder or beneficial owner of such Note would have been entitled the interest not failed to such Additional Amounts on presenting such Note for payment on any date during such 30-day period; or
(3) the failure be a resident of the Holder or beneficial owner to comply with a timely request from United States within the Company or any successor meaning of the Company, addressed to income tax treaty between the Holder United States and The Netherlands or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy United States and any other reporting requirement relating to such matters, if and relevant jurisdiction; (v) to the extent that due and timely compliance with such request is required by statute, regulation Additional Amounts exceed the Additional Amounts that would have been payable had such Securityholder or administrative practice beneficial owner of the Relevant Taxing Jurisdiction interest (if such person is a tax-exempt entity) not sold, or agreed to reduce sell, such Security within the three months of the acquisition thereof; or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(bvi) on account of any estate, inheritance, gift, sale, transfer, excise, personal property or other similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States ; and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (ai), (bii), (ciii), (iv), (v) or (dvi); or
(ii) , nor shall Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, interest on, such Note any Security to a Holder, if the Holder any Securityholder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such any Additional Amounts had that beneficiary, settlor, partner such beneficiary or settlor or beneficial owner been the Holder thereof.
Securityholder. The Issuers will also (a) make such withholding or deduction compelled by applicable law and (b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction authority in accordance with applicable law. The Company Issuers will furnish copies of such receipts evidencing the payment of any Taxes so deducted or withheld in such form as provided in the normal course by the taxing authority imposing such Taxes and as is reasonably available to the trusteeIssuers to the Trustee within 60 days after the date of receipt of such evidence. The Trustee shall make such evidence available to the Holders of Securities upon request. If the Issuers have paid any Additional Amounts to any Securityholder or, if different, the beneficial owner of the interest and such Person is entitled to a refund of the Tax to which such Additional Amounts are attributable from any competent taxation authority or other governmental authority, then such Person shall (a) as soon as practicable but in any event within 30 days after receiving a written request thereof from the date Issuers, comply with any administrative procedure to obtain such refund and (b) upon receipt of such refund promptly pay over such refund to the payment of any taxes so deducted or withheld is due pursuant Issuers. If Additional Amounts are paid to applicable law, either certified copies of tax receipts evidencing such payment a Securityholder or, if different, the beneficial owner of the interest, and subsequently it is determined that the Securityholder or beneficial owner of the interest was not entitled to such receipts are not obtainableAdditional Amounts, other evidence then such Securityholder or beneficial owner of payments reasonably satisfactory the interest shall promptly refund to the Trustee. Upon request, copies Issuers the amount of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee all such Additional Amounts previously paid to the Holders Securityholder or beneficial owners owner of the Notes.
(c) interest. All references herein and in the Company Securities to the principal of or interest on a Security shall be deemed to include any Additional Amounts payable in connection therewith. The Issuers will pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, taxes or any other excise or property taxes, charges or similar levies (includingthat arise in any jurisdiction from the execution, in each case, interest and penalties) payable in respect delivery or registration of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, Securities or any documentation with respect thereto, excluding other document or instrument referred to herein or in the Securities. At least 30 days prior to each date on which any such taxes, charges payment under or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase PriceSecurities is due and payable, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Issuers will be obligated to pay Additional Interest, on, any Note or any other amount payable Amounts with respect to such Notepayment, shall be deemed the Issuers will deliver to include any the Trustee and the Paying Agent an Officers’ Certificate stating the fact that such Additional Amounts, unless the context requires otherwise, that are or may Amounts will be payable and shall specify by country the amounts to be payable and will set forth such other information necessary to enable the Trustee and the Paying Agent to pay such Additional Amounts to Holders on the payment date. The Issuers shall indemnify the Trustee and any Paying Agent for, and hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section. The obligations of the Issuers under this Section 4.19 shall survive the termination of this Indenture and the payment of all amounts under or with respect to the Securities. The Issuers will not take any voluntary action that amount under the results in their obligations referred to in this Section 5.10pay Additional Amounts.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or If any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed by the jurisdiction, other than the United States, where ▇▇▇▇▇▇ Parent or levied by a successor (a “Payor”) is organized or within any jurisdiction in which the Company or any successor otherwise considered to the Company is, be a resident for tax purposes, organized or otherwise resident or any jurisdiction, other than the United States, from or through which the Payor makes a payment is made (or on the Debt Securities, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) therein having the power to tax (each, as applicable, a the “Relevant Taxing Tax Jurisdiction”)) in respect of any payments under the Debt Securities, unless such withholding or deduction is required by law or by regulation or governmental policy having the force including any Guarantee with respect to any series of law. In the event that any such withholding or deduction is so requiredDebt Securities, the Company or any successor to the Company Payor shall pay to each Holder of a Debt Security, to the extent it may lawfully do so, such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by specified in such Debt Security to which such holder is entitled; provided, however, the beneficial owner after such withholding or deduction (and after deducting Payor shall not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note holder, if such holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, Tax Jurisdiction including, without limitation, such Holder holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such the Relevant Taxing Tax Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
in the Relevant Tax Jurisdiction or (2ii) the presentation of such Note a Debt Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerwhichever occurs later;
(b) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, dutyassessment or other governmental charge which is payable otherwise than by withholding from payment of (or in respect of) principal of, premium, if any, or any interest on, the Debt Securities;
(d) any tax, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure by the holder or the beneficial owner of the Debt Security to comply with respect a request of the Payor addressed to the Notes;
(d) any taxholder to provide information, assessmentdocuments or other evidence concerning the nationality, withholding residence or deduction identity of the holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or other official guidance enacted in any administrative practice of the taxing jurisdiction implementing FATCAas a precondition to exemption from all or part of such tax, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments assessment or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Cooper Industries, Ltd.)
Payment of Additional Amounts. (a) All payments and deliveries made 5.11.1 As provided for by Clause 3.1.15 of the Company or any successor to the Company under or with respect to this Indenture and the NotesOriginal Indenture, including, but not limited to, all payments of principal (including principal, premium and interest in respect of the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Notes shall be made without withholding or deduction for, or on account of, for any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company on behalf of Brazil or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Successor Jurisdiction or any political subdivision authority therein or taxing authority thereof or therein) having power to tax (each, as applicable, a “Relevant Taxing JurisdictionWithholding Taxes”), unless except to the extent that such withholding or deduction is Withholding Taxes are required by law Brazil, such Successor Jurisdiction or by regulation any such authority to be withheld or governmental policy having the force of lawdeducted. In the event that of any such withholding or deduction is so requiredfor any Withholding Taxes, the Company or any successor to the Company Guarantor, as the case may be, shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received will result in receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes Holders of Notes on the Additional Amounts) shall equal the respective due dates of such amounts that as would have been received by such beneficial owner them had no such withholding or deduction (including for any Withholding Taxes payable in respect of Additional Amounts) been required; provided , except that no such Additional Amounts shall be payablepayable with respect to any payment on a Note:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or on account of:
other governmental charges which would not have been imposed but for (aA) a connection between the Holder and Brazil other than the mere holding of such Note and the receipt of payments with respect to such Note or (B) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, dutyof such Holder, if compliance is required by such Successor Jurisdiction, or any political subdivision or authority thereof or therein having power to tax as a precondition to, exemption from, or reduction in the rate of, the tax, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionCompany has given the Holders at least 30 days’ notice that Holders will be required to provide such certification, identification or other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinrequirement;
(2ii) the presentation in respect of any such taxes, duties, assessments or other governmental charges with respect to a Note surrendered (in cases in which presentation if surrender is required) more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant or (y) if the full amount payable has not been received by the Trustee on or prior to such date, the terms date on which full payment thereof or was made or duly provided foris received by the Trustee and notice thereof given to Holders, whichever occurs later, except to the extent that the holder or beneficial owner Holder of such Note would have been entitled to such Additional Amounts on presenting surrender of such Note for payment on any date during the last day of such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(biii) any in respect of estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental chargecharge imposed with respect to a Note;
(civ) in respect of any tax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal or interest on the Notes or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) in respect of any such Withholding Tax that is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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 directive; or
(vi) in respect of any combination of the above. For purposes of the provisions described in Clause (i) above, the term “Holder” of any Note means the direct nominee of any beneficial owner of such Note, which holds such beneficial owner’s interest in such Note. Notwithstanding the foregoing, the limitations on the Company’s or the Guarantor’s obligation to pay Additional Amounts set forth in Clause (i) above shall not apply if the provision of information, documentation or other evidence described in such Clause (i) 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 (taking into account any relevant differences between U.S. and Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and Brazil), regulation (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, shall promptly provide the Trustee with documentation, if any, (which may consist of certified copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of Foreign Taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Notes or the Paying Agent, as applicable, upon request therefor. In respect of the Notes issued hereunder, at least 10 days prior to the first date of payment of interest on the Notes, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and the Paying Agent as to whether such payment of interest on such Notes shall be made without deduction or withholding for or on account of any tax, duty, assessment or other governmental charge charge. If there is any change in the matters set forth in that is payable otherwise than by withholding from payments under or with respect Officers Certificate, the Company and the Guarantor shall, at least 10 days prior to the Notes;
(d) first date of payment of principal or interest after each such subsequent change, provide a new Officer’s Certificate stating whether in light of such changes, such payment of interest or principal shall be made without deduction or withholding for or on account of any tax, assessmentduty, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments assessment or other governmental charges referred charge. If any such deduction or withholding shall be required by Brazil or any Successor Jurisdiction or any authority therein having power to in tax, then such certificate shall specify, by country, the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premiumamount, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing on such payment orto Holders of such Notes, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to and the Trustee. Upon request, copies of those receipts Company or other evidence of paymentsthe Guarantor, as the case may be, will (if payment is then due under the Guaranty) shall pay or cause to be made available by paid to the Trustee or such Paying Agent Additional Amounts, if any, required by this Section. The Company and the Guarantor agree to indemnify the Holders Trustee and each Paying Agent for, and to hold them harmless against, any loss, liability or beneficial owners reasonable and duly documented expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by them in reliance on any Officers’ Certificate furnished pursuant to this Section, the obligation of the NotesCompany and the Guarantor to so indemnify being joint and several.
(c) 5.11.2 The Company or the Company will Guarantor, as the case may be, shall pay any all stamp, issue, registration, court, documentary or value added taxesother similar duties, if any, which may be imposed by Brazil or any other governmental entity or political subdivision therein or thereof, or any other excise taxing authority of or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect any of the creationforegoing, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion issuance of the Notes or the payment Guaranty.
5.11.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of principal each certificate received by the Company or the Guarantor from a Holder of (including a Note pursuant to the Fundamental Change Repurchase Pricetext of such Security. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Note is Outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the administration of applicable tax laws.
5.11.4 In the event that Additional Amounts actually paid with respect to the Notes pursuant to the preceding paragraph 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 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 the Company or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
5.11.5 All references in this First Supplemental Indenture, the Original Indenture and the Notes to principal, premium or interest in respect of any Note shall be deemed to mean and include all Additional Amounts, if applicableany, and the Redemption Pricepayable in respect of such principal, if applicable), and any premium or interest, including unless the context otherwise requires, and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to Additional InterestAmounts in those provisions hereof where such express mention is not made. All references in this First Supplemental Indenture, on, the Original Indenture and the Notes to principal in respect of any Note or any other amount payable with respect to such Note, shall be deemed to mean and include any Additional Amounts, unless Redemption Price or Repurchase Price payable in respect of such Note pursuant to any redemption or repurchase right hereunder (and all such references to the context requires otherwise, that are Stated Maturity of the principal in respect of any Note shall be deemed to mean and include the Redemption Date or may be payable Repurchase Date with respect to that any such Redemption Price or Repurchase Price), and all such references to principal, premium, interest or Additional Amounts shall be deemed to mean and include any amount under payable in respect hereof pursuant to Section 9.10, and express mention of the obligations referred payment of any Redemption Price or Repurchase Price, or any such other amount in any provision hereof shall not be construed as excluding reference to the payment of any Redemption Price or Repurchase Price, or any such other amounts in this Section 5.10those provisions hereof where such express reference is not made.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: First Supplemental Indenture (Brazilian Telecommunication CO Embratel)
Payment of Additional Amounts. Unless the Securities of a particular series otherwise provide, all payments of principal and interest (aincluding payments of discount and premium, if any) All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments Securities of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, a particular series shall be made free and clear of, and without withholding or deduction for, for or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within a Taxing Jurisdiction or by or within any jurisdiction in which the Company political subdivision thereof or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Gross-Up Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that of any such withholding or deduction is so requireddeductions, the Company or any successor to the Company Guarantor, as the case may be, shall pay to each the Holder of such securities such additional amounts (“"Additional Amounts”") as may be necessary will result in the payment to ensure such Holder of the amount that would otherwise have been due to such Holder in the net amount received by the beneficial owner after absence of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts deduction, except that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(a) to, or to a person on behalf of, a Holder who is liable for such Gross-Up Taxes with respect to the Securities or any taxGuarantee, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence by reason of any present or former such Holder having some connection between with the relevant Holder Taxing Jurisdiction (including being a citizen or beneficial owner of resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, such Note and the Relevant Taxing Jurisdiction, ) other than merely the mere holding such Note of a Security or the receipt of principal and interest (including payments or the enforcement of rights thereunderdiscount and premium, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident if any) in respect thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;respect of the Guarantee; or
(2b) the presentation of such Note to, or to a Person on behalf of, a Holder who presents a Security (in cases in which where presentation is required) for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note Security for payment on any date during the last day of such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge30 days;
(c) any taxto, dutyor to a Person on behalf of, assessment or other governmental charge that a Holder who presents a Security (where presentation is payable otherwise than by withholding from payments under or with respect to the Notesrequired) in a Taxing Jurisdiction;
(d) any taxto, assessmentor to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction required by FATCA, any current making a declaration of non-residence or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between similar claim for exemption to the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCArelevant tax authority; or
(e) any combination of taxesto, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Person on behalf of, a Holder of a Registered Security that is not a Global Security issued pursuant to the request of owners representing a majority in Outstanding principal amount of such Securities following and during the continuance of an Event of Default if such Holder (or any predecessor Holder) was one of such owners requesting that such Registered Securities be so issued. Such Additional Amounts will also not be payable where, if had the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in Security (or any interest therein) been the income under the laws Holder of the Relevant Taxing JurisdictionSecurity, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who he would not have been entitled to such payment of Additional Amounts had by reason of any one or more of clauses (a) through (e) above. If the Company or the Guarantor, as applicable, shall determine that beneficiaryAdditional Amounts will not be payable because of the immediately preceding sentence, settlorthe Company or the Guarantor, partner as applicable, will inform such Holder promptly after making such determination setting forth the reason(s) therefor. Reference to principal, interest, discount or beneficial owner been premium in respect of the Holder thereof.
Securities (bor any payments pursuant to any Guarantee) The Company will make shall be deemed also to refer to any required withholding Additional Amounts which may be payable as set forth in this Indenture or deduction of taxes and remit in the full amount deducted or withheld Securities. At least 10 Business Days prior to the relevant taxing jurisdiction 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 matters set forth in accordance with applicable law. The the below-mentioned Officers' Certificate) the Company will furnish to the trustee, within 30 days after Trustee and any Paying Agent an Officers' Certificate instructing the date Trustee and any Paying Agent whether payments of principal of or interest on the payment Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any taxes so deducted Gross-Up Taxes. If any such deduction or withholding shall be required, prior to such Interest Payment Date the Company will furnish the Trustee and any Paying Agent with an Officers' Certificate which specifies the amount, if any, required to be withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing on such payment orto Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, if such receipts are not obtainableand to hold the Trustee harmless against, other evidence any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part, arising out of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available in connection with actions taken or omitted by the Trustee in reliance on any Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 1009 to be provided to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), Trustee and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Paying Agent shall be deemed to include any Additional Amounts, unless be duly provided if telecopied to the context requires otherwise, that are Trustee and such Paying Agent. The Company shall furnish to the Trustee the official receipts (or may a certified copy of the official receipts) evidencing payment of Gross-Up Taxes. Copies of such receipts shall be payable with respect made available to that amount under the obligations referred to in this Section 5.10Holders of the Securities upon request.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. The Company and the Guarantor shall make all payments of principal, interest and premium in respect of the Securities (a) All including payments and deliveries made by the Company or any successor to Guarantor under the Company under or with respect to this Indenture Subordinated Guarantee) free and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicableclear of, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed (“Taxes”) imposed, levied, collected, withheld or levied assessed by The Netherlands (if by the Company) or within any jurisdiction in which the Company or any successor to Federal Republic of Germany (if by the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Guarantor) or any political subdivision or taxing any authority thereof or therein) therein that has power to tax (each, as applicable, a “Relevant Taxing Jurisdiction”), unless the Company or the Guarantor is compelled by law to make such withholding or deduction is required by law or by regulation or governmental policy having the force of lawdeduction. In the event that any of such withholding or deduction is so requireddeduction, the Company or any successor to the Company shall Guarantor will pay to each Holder such additional amounts (the “Additional Amounts”) as may be are necessary for each Holder to ensure receive, after deduction or withholding of such Taxes, the full amount that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that Holder would have been received by such beneficial owner had if no such withholding or deduction had been required; provided that no such Additional Amounts shall be payablepayable with respect to such Taxes in respect of any amount payable on any Securities:
(i) to a Holder which is liable for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the relevant Holder or beneficial owner such Taxes in respect of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt Securities by reason of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply some connection with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, Relevant Jurisdiction (as the case may be, ) other than the mere holding of such Securities;
(ii) to provide certification, information, documents or other evidence concerning a Holder which would be able to avoid such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as under the laws of a Relevant Jurisdiction by presenting any form or certificate and/or making a declaration of non-residence or similar claim for exemption or refund but fails to which Additional Amounts would have otherwise do so after proper notice has been payable sent to such Holder or beneficial ownerby the Issuer;
(biii) in respect of any estate, inheritance, gift, sale, transfer, excise, personal property deduction or similar tax, assessment withholding imposed on a payment to an individual and required to be made pursuant to European Council Directive 2003/48/EC or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA European Union Directive implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation of savings income or any law enacted by such other jurisdiction to give effect to such agreementimplementing or complying with, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxesintroduced in order to conform to, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)such Directive; or
(iiiv) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment which would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled able to avoid such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit by presenting (where presentation is required) the full amount deducted or withheld Security to the relevant taxing jurisdiction a Paying Agent in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners another Member State of the Notes.
(c) the Company will pay European Union. For purposes of this Indenture, any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required references to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, and/or interest on Securities shall be deemed to include a reference to any relevant premium and/or Additional Amounts, unless Amounts payable in respect of such Securities. In the context requires otherwise, event that are or may be payable with respect to that amount under a New Issuer assumes the obligations referred of the Company pursuant to Section 803 and the New Issuer is organized or resident in this Section 5.10any jurisdiction other than The Netherlands for tax purposes, such other jurisdiction will be deemed to be a Relevant Jurisdiction.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Subordinated Debt Indenture (Allianz Finance III B.V.)
Payment of Additional Amounts. The Company shall, subject to certain exceptions and limitations set forth below, pay such additional amounts (athe "Additional Amounts") All payments and deliveries made by the Company or any successor to the Company under Holder of any Security or with respect to this Indenture of any coupon appertaining thereto who is a United States Alien as may be necessary in order that every net payment of the principal of, premium, if any, and the Notes, including, but not limited to, payments of principal interest (including the Fundamental Change Repurchase Priceoriginal issue discount) on such Security and any other amounts payable on such Security, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash after withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxestax, duties, assessments assessment or governmental charges charge imposed upon or as a result of whatever nature imposed or levied such payment by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made United States (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless will not be less than the amount provided for in such withholding Security or deduction is coupon to be then due and payable. The Company shall not, however, be required by law or by regulation or governmental policy having the force to make any payment of law. In the event that Additional Amounts to any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(a) any tax, duty, such tax assessment or other governmental charge that would not have been so imposed but for:
(1i) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of such Note Holder, if such Holder is an estate, a trust, a partnership or a corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunderUnited States and its possessions, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member or shareholder) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or presence therein or having having, or having had had, a permanent establishment thereintherein or;
(2ii) the presentation by the Holder of any such Note (in cases in which presentation is required) Security or coupon for payment on a date more than 30 15 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerwhichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Bell Atlantic Corp)
Payment of Additional Amounts. (a) All payments and deliveries made by the The Company or any successor will pay to the Company under Holder of any Security such additional amounts as may be necessary in order that every net payment of the principal of and interest on such Security after deduction or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash other withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxestax, dutiesassessment, assessments or other governmental charges charge of whatever any nature imposed whatsoever imposed, levied or levied collected by or within any jurisdiction on behalf of the country in which the Company or any successor to the Company isFTL-Cayman is organized, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicablewill not be less than the amount provided for in such Security to be then due and payable; provided, a “Relevant Taxing Jurisdiction”)however, unless such withholding or deduction is required by law or by regulation or governmental policy having that the force of law. In the event that any such withholding or deduction is so required, the Company or any successor foregoing obligation to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or will not apply on account of:
(a) of any tax, dutyassessment, assessment or other governmental charge that would not have been imposed but for:
which is payable (1i) the existence otherwise than by deduction or withholding from payments of any present principal of or former connection between the relevant Holder interest on such Security; or beneficial owner (ii) by reason of such Note and Holder, or a person on behalf of such Holder, having, or having had, some personal or business connection with the Relevant Taxing Jurisdiction, country in which FTL-Cayman is organized other than merely holding the mere receipt of such Note payment or the receipt ownership or holding of payments a Security; or the enforcement of rights thereunder(iii) to, includingor to a person on behalf of, without limitation, such a Holder or beneficial owner being or having been who presents a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which Security where presentation is required) required for payment more than 30 days after the later relevant date for payment of the date on which the payment became due and payable pursuant to the terms thereof principal or was made or duly provided for, interest in respect of such Security except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts additional amounts on presenting such Note Security for payment on the last day of such period of 30 days; or (iv) by reason of any date during such 30-day periodestate, excise, inheritance, gift, sales, transfer, wealth or personal property tax or any similar assessment or governmental charge; or
or (3v) as a result of the failure of a -49- 55 Holder, or a person on behalf of such Holder, to satisfy any statutory requirements or make a declaration of nonresidence or other similar claim for exemption to the relevant tax authority; or (vi) owing to any combination of clauses (i) through (v) above. No additional amounts will be paid as provided above with respect to any payment of principal of or interest on any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of any such payment to the extent that the beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of such payment would not have been entitled to the additional amounts had such beneficiary, settlor, member of beneficial owner been the Holder of any such Security. Whenever in this Indenture there is mentioned, in any context, the payment of any principal of or beneficial owner interest on any Security, such mention shall be deemed to comply include mention of the payment of additional amounts provided for in this Section 4.16 to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 4.16, and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made. Successor Companies
SECTION 5.01. When Company, FTL-Cayman or Guarantor Subsidiaries May Merge or Transfer Assets.
(a) Neither the Company nor FTL-Cayman shall consolidate with a timely request from or merge with or into, or convey, transfer or lease all or substantially all its assets to, any person, unless:
(i) the resulting, surviving or transferee person (if not the Company or any successor FTL-Cayman) shall be a person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia (in the case of any such transaction involving the Company) and such person shall expressly assume, addressed by an indenture supplemental hereto, executed and delivered to the Holder Trustee, in form satisfactory to the Trustee, all the respective obligations of the Company or beneficial ownerFTL-Cayman, as the case may be, to provide certificationunder the Securities, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if FTL-Cayman Guarantee and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerthis Indenture;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect immediately prior to and after giving effect to such transaction (and treating any payment Debt which becomes an obligation of the principal resulting, surviving or transferee person or any Subsidiary of (including such person, as a result of such transaction as having been issued by such person or such Subsidiary at the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicabletime of such transaction), premiumno Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, if anythe resulting, and interestsurviving or transferee person would be able to issue at least $1.00 of Debt pursuant to Section 4.03(a); provided, including any Additional Interesthowever, onthat the Consolidated EBITDA Coverage Ratio of the resulting, such Note to surviving or transferee person for the Reference Period shall be calculated on a Holder, pro forma basis as if the Holder transaction occurred at the beginning of the Reference Period;
(iv) immediately after giving effect to such transaction, the resulting, surviving or transferee person shall have Consolidated Net Worth in an amount which is a fiduciary, partnership or person other not less than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws Consolidated Net Worth of the Relevant Taxing JurisdictionCompany, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of paymentsFTL-Cayman, as the case may be, prior to such transaction; and
(v) the Company, or FTL-Cayman, as the case may be, shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; The resulting, surviving or transferee person will be made available by the Trustee successor Company or the successor guarantor, as the case may be, and shall succeed to, and be substituted for, and may exercise every right and power of, the Company or FTL-Cayman, as the case may be, under this Indenture, but the predecessor Company or the predecessor guarantor, as the case may be, in the case of a conveyance, transfer or lease shall not be released from the obligation to pay the Holders or beneficial owners principal of and interest on the Securities (in the case of the Notes.
(cCompany) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes obligation to guarantee such payment (in any context to the delivery case of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicableFTL-Cayman), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Fruit of the Loom LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuer will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the “Additional Amounts”) as may be necessary in order that every net payment or deemed payment of (i) principal, premium, Liquidated Damages and interest, if any, with respect to this Indenture and a Note, or (ii) net proceeds on the Notessale or exchange of a Note, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided provided, however, that no such Additional Amounts shall be payablepayable in respect of any Note for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Note;
(2b) the presentation of presented such Note for payment in The Bahamas or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Note for payment more than 30 days after the later of the date on which the payment in respect of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orSecurities;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Note to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.Note; or
(b4) The Company will make any required withholding or deduction combination of taxes items (1), (2) and remit the full amount deducted or withheld to the relevant taxing jurisdiction (3). Whenever there is mentioned herein in accordance with applicable law. The Company will furnish to the trusteeany context, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and or any premium or interestinterest on, including any Additional Interest, onor in respect of, any Note or the net proceeds received on the sale or exchange of any other amount payable with respect to such Note, such mention shall be deemed to include any mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to this Indenture. Without limiting a Holder’s right to receive payment of Additional Amounts, unless in the context requires otherwise, event that are or may be payable Additional Amounts actually paid with respect to the Securities are based on rates of deduction or withholding of Bahamian taxes in excess of the appropriate rate applicable to the Holder of such Securities and, as a result thereof, such Holder of Securities is entitled to make a claim for a refund or credit of such excess, then such Holder of Securities shall, by accepting the Securities and receiving a payment of Additional Amounts, 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. By making such assignment, the Holder of Securities makes no representation or warranty that amount under the obligations referred Issuer will be entitled to in this Section 5.10receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Kerzner International Employment Services LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by If the Company or any successor to the Company under or with respect to this Indenture and the NotesSecurities of a particular series provide for payment of Additional Amounts, including, but not limited to, all payments of principal and interest (including the Fundamental Change Repurchase Pricepayments of discount and premium, if applicable, and any) in respect of the Redemption Price, if applicable), payments Securities of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, such series shall be made free and clear of, and without withholding or deduction for, for or on account ofaccount, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within the United Kingdom or by or within any jurisdiction in which the Company political subdivision thereof or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"United Kingdom Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the that event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each the Holder such additional amounts (“the "Additional Amounts”") as may be necessary will result in the payment to ensure such Holder of the amount that would otherwise have been receivable by such Holder in the net amount received by the beneficial owner after absence of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts deduction, except that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) to, or to a Person on behalf of, a Holder who is liable for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence such United Kingdom Taxes in respect of any present or former connection between the relevant Holder or beneficial owner Securities by reason of such Note and Holder having some connection with the Relevant Taxing JurisdictionUnited Kingdom (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than merely the mere holding such Note of a Security or the receipt of principal and interest (including payments or the enforcement of rights thereunderdiscount and premium, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged if any) in a trade or business therein or having or having had a permanent establishment thereinrespect thereof;
(2ii) the presentation of such Note to, or to a Person on behalf of, a Holder who presents a Security (in cases in which where presentation is required) for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided forRelevant Date, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note Security for payment on any date during the last day of such 30-day periodperiod of 30 days;
(iii) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in the United Kingdom; or
(3iv) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdictionto, or to make any declaration a Person on behalf of, a Holder who would not be liable or satisfy any other reporting requirement relating to such matters, if and subject to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as by making a declaration of non-residence or similar claim for exemption to which the relevant tax authority. Such Additional Amounts would have otherwise been will also not be payable to such Holder or beneficial owner;
(b) any estatewhere, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to had the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in Security (or any interest therein) been the income under the laws Holder of the Relevant Taxing JurisdictionSecurity, for tax purposes, of a beneficiary he or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who she would not have been entitled to such payment of Additional Amounts had by reason of any one or more of clauses (i) through (iv) above. If the Company shall determine that beneficiaryAdditional Amounts will not be payable because of the immediately preceding sentence, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make inform such Holder promptly after making such determination setting forth the reason(s) therefor. Reference to principal, interest, discount or premium in respect of the Securities shall be deemed also to refer to any required withholding Additional Amounts that may be payable as set forth in this Indenture or deduction of taxes and remit in the full amount deducted or withheld Securities. At least 10 Business Days prior to the relevant taxing jurisdiction 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 matters set forth in accordance with applicable law. The the below-mentioned Officers' Certificate), the Company will furnish to the trustee, within 30 days after Trustee and the date Paying Agents an Officers' Certificate instructing the payment Trustee and the Paying Agents whether payments of principal of or interest on the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any taxes so deducted United Kingdom. If any such deduction or withholding shall be required, prior to such Interest Payment Date, the Company will furnish the Trustee and the Paying Agents with an Officers' Certificate that specifies the amount, if any, required to be withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing on such payment orto Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, if such receipts are not obtainableand to hold the Trustee harmless against, other evidence any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part, arising out of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available in connection with actions taken or omitted by the Trustee in reliance on any Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 1009 to be provided to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), Trustee and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Paying Agent shall be deemed to include any Additional Amounts, unless be duly provided if telecopied to the context requires otherwise, that are Trustee and such Paying Agent. The Company shall furnish to the Trustee the official receipts (or may a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be payable with respect made available to that amount under the obligations referred to in this Section 5.10Holders of the Securities upon request.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuers will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the "Additional Amounts") as may be necessary in order that every net payment or deemed payment of (i) principal, premium, Liquidated Damages and interest, if any, with respect to this Indenture and a Note, or (ii) net proceeds on the Notessale or exchange of a Note, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided provided, however, that no such Additional Amounts shall be payablepayable in respect of any Note for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Note;
(2b) the presentation of presented such Note for payment in The Bahamas or any political subdivision thereof or therein, unless such Note could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Note for payment more than 30 days after the later of the date on which the payment in respect of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orNotes;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Note to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.Note; or
(b4) The Company will make any required withholding or deduction combination of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
items (c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable1), (2) and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10(3).
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by If the Company or any successor to the Company under or with respect to this Indenture and the NotesSecurities of a particular series provide for payment of Additional Amounts, including, but not limited to, all payments of principal and interest (including the Fundamental Change Repurchase Pricepayments of discount and premium, if applicable, and any) in respect of the Redemption Price, if applicable), payments Securities of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, such series shall be made free and clear of, and without withholding or deduction for, for or on account ofaccount, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within the United Kingdom or by or within any jurisdiction in which the Company political subdivision thereof or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing JurisdictionUnited Kingdom Taxes”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the that event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each the Holder such additional amounts (the “Additional Amounts”) as may be necessary will result in the payment to ensure such Holder of the amount that would otherwise have been receivable by such Holder in the net amount received by the beneficial owner after absence of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts deduction, except that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) to, or to a Person on behalf of, a Holder who is liable for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence such United Kingdom Taxes in respect of any present or former connection between the relevant Holder or beneficial owner Securities by reason of such Note and Holder having some connection with the Relevant Taxing JurisdictionUnited Kingdom (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than merely the mere holding such Note of a Security or the receipt of principal and interest (including payments or the enforcement of rights thereunderdiscount and premium, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged if any) in a trade or business therein or having or having had a permanent establishment thereinrespect thereof;
(2ii) the presentation of such Note to, or to a Person on behalf of, a Holder who presents a Security (in cases in which where presentation is required) for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided forRelevant Date, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note Security for payment on any date during the last day of such 30-day periodperiod of 30 days;
(iii) to, or to a Person on behalf of, a Holder who presents a Security (where presentation is required) in the United Kingdom; or
(3iv) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdictionto, or to make any declaration a Person on behalf of, a Holder who would not be liable or satisfy any other reporting requirement relating to such matters, if and subject to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as by making a declaration of non-residence or similar claim for exemption to which the relevant tax authority. Such Additional Amounts would have otherwise been will also not be payable to such Holder or beneficial owner;
(b) any estatewhere, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to had the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in Security (or any interest therein) been the income under the laws Holder of the Relevant Taxing JurisdictionSecurity, for tax purposes, of a beneficiary he or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who she would not have been entitled to such payment of Additional Amounts had by reason of any one or more of clauses (i) through (iv) above. If the Company shall determine that beneficiaryAdditional Amounts will not be payable because of the immediately preceding sentence, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make inform such Holder promptly after making such determination setting forth the reason(s) therefor. Reference to principal, interest, discount or premium in respect of the Securities shall be deemed also to refer to any required withholding Additional Amounts that may be payable as set forth in this Indenture or deduction of taxes and remit in the full amount deducted or withheld Securities. At least 10 Business Days prior to the relevant taxing jurisdiction 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 matters set forth in accordance with applicable law. The the below-mentioned Officers’ Certificate), the Company will furnish to the trustee, within 30 days after Trustee and the date Paying Agents an Officers’ Certificate instructing the payment Trustee and the Paying Agents whether payments of principal of or interest on the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any taxes so deducted United Kingdom. If any such deduction or withholding shall be required, prior to such Interest Payment Date, the Company will furnish the Trustee and the Paying Agents with an Officers’ Certificate that specifies the amount, if any, required to be withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing on such payment orto Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, if such receipts are not obtainableand to hold the Trustee harmless against, other evidence any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part, arising out of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available in connection with actions taken or omitted by the Trustee in reliance on any Officers’ Certificate furnished pursuant to this paragraph. Any Officers’ Certificate required by this Section 1009 to be provided to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), Trustee and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Paying Agent shall be deemed to include any Additional Amounts, unless be duly provided if telecopied to the context requires otherwise, that are Trustee and such Paying Agent. The Company shall furnish to the Trustee the official receipts (or may a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be payable with respect made available to that amount under the obligations referred to in this Section 5.10Holders of the Securities upon request.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (PPL Energy Supply LLC)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to the Company under or If with respect to Securities of any series it is specified pursuant to Section 2.5 that this Indenture and the NotesSection 3.9 shall apply to Securities of such series and, as a result, that Section 10.7 shall apply thereto, then all payments in respect of Securities of such series including, but not limited towithout limitation, payments of principal (including the Fundamental Change Repurchase Priceprincipal, interest, if applicableany, and the Redemption Pricepremium, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversionany, shall be made by the Issuer without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments levies, or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or levied established in the future by or within any jurisdiction in which the Company on behalf of The Netherlands or any successor authority in The Netherlands ("Taxes"). In the event any such Taxes are so imposed or established, the Issuer shall pay such additional amounts ("Additional Amounts") as may be necessary in order that the net amounts receivable by each Holder of a Security of such series after any payment, withholding or deduction in respect of such Taxes shall equal the respective amounts of principal, interest, if any, and premium, if any, which would have been receivable in respect of the Securities in the absence of such payment, withholding or deduction; except that no such Additional Amounts will be payable with respect to any payment on any Security of such series to, or to a third party on behalf of, a Holder for or on account of any such taxes or liabilities whatever that have been imposed by reason of (i) the Holder being a resident of The Netherlands or having some connection with The Netherlands other than the mere holding of such Security or the receipt of principal, interest, if any, or premium, if any, in respect thereof; (ii) the presentation by the Holder of a Security of such series 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 is duly provided for, whichever occurs later; (iii) any estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment or governmental charge; (iv) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Security; or (v) any combination of items (i), (ii), (iii) or (iv). Furthermore, no Additional Amounts shall be paid with respect to any payment on a Security of such series to a Holder that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the Company isextent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder of the Security of such series. Whenever in this Indenture or the Securities of any series to which this Section 3.9 is applicable there is a reference, in any context, to the payment of the principal of or interest, if any, on, or in respect of, any Security to which this Section 3.9 is applicable, such payment shall be deemed to include the payment of Additional Amounts provided for tax purposesin this Section to the extent that, organized in such context, Additional Amounts are, were or otherwise resident would be payable in respect of such payment pursuant to the provisions of such Section and express mention of the payment of Additional Amounts (if applicable) in any provision hereof or from thereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. Except as specifically provided in this Section 3.9 and Section 10.7 with respect to Securities of any series to which such sections are applicable, the Issuer will not be required to make any payment with respect to any tax, assessment or through which payment is made (governmental charge imposed by any government or any a political subdivision or taxing authority thereof or therein."
(g) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding With respect to Securities issued on or deduction is required by law or by regulation or governmental policy having after the force of law. In the event that any such withholding or deduction is so requireddate hereof, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence first 25 words of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later Section 10.7 of the date on which the payment became due Indenture are hereby deleted and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection replaced with the Relevant Taxing Jurisdictionfollowing: "If, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) Securities of any taxseries it is specified pursuant to Section 2.5 that Section 3.9 and this Section 10.7 shall be applicable to Securities of such series, assessment, withholding or deduction required by FATCA, at any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days time after the date the payment of issuance of Securities of such series pursuant to this Indenture, as a result of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Noteschange in,".
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Supplemental Indenture (Royal Ahold)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuers will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the "Additional Amounts") as may be necessary in order that every net payment or deemed payment of (i) principal, premium and interest, if any, with respect to this Indenture and a Security, or (ii) net proceeds on the Notessale or exchange of a Security, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided provided, however, that no such Additional Amounts shall be payablepayable in respect of any Security for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Security;
(2b) the presentation of presented such Note Security for payment in The Bahamas or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Security for payment more than 30 days after the later of the date on which the payment in respect of such Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note Security for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orSecurity;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Security to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.Security; or
(b4) The Company will make any required withholding or deduction combination of taxes items (1), (2) and remit the full amount deducted or withheld to the relevant taxing jurisdiction (3); Whenever there is mentioned herein in accordance with applicable law. The Company will furnish to the trusteeany context, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and or any premium or interest, including any Additional Interest, interest on, or in respect of, any Note Security or the net proceeds received on the sale or exchange of any other amount payable with respect to Security, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts provided for in the Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the Indenture. Without limiting a Holder's right to receive payment of Additional Amounts, unless in the context requires otherwise, event that are or may be payable Additional Amounts actually paid with respect to the Securities are based on rates of deduction or withholding of Bahamian taxes in excess of the appropriate rate applicable to the Holder of such Securities and, as a result thereof, such Holder of Securities is entitled to make a claim for a refund or credit of such excess, then such Holder of Securities shall, by accepting the Securities and receiving a payment of Additional Amounts, 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 Issuers. By making such assignment, the Holder of Securities makes no representation or warranty that amount under the obligations referred Issuers will be entitled to in this Section 5.10receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Ggri Inc)
Payment of Additional Amounts. (a) 10.7.1 All payments and deliveries made by in respect of the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within on behalf of Brazil (“Brazilian Taxes”), the Netherlands (“Dutch Taxes”) or any other jurisdiction or political subdivision thereof having power to tax in which the Company or any successor to the Company is, thereto is organized or incorporated or is a resident for tax purposes, organized or otherwise resident or from or through which payment is made purposes (or any political subdivision or taxing authority thereof or therein) (each“Foreign Taxes”), as applicableapplicable (each such jurisdiction, a “Relevant Taxing Jurisdiction”), unless such withholding the Company or deduction the Guarantor, as the case may be, is required compelled by law to deduct or by regulation withhold such taxes, duties, assessments or governmental policy having the force of lawcharges. In the event that of any such withholding or deduction is so requireddeduction, the Company or any successor the Guarantor, as the case may be, shall make such deduction or withholding, will make payment of the amount so withheld to the Company shall appropriate governmental authority and will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the every net amount received payment made by the beneficial owner Company or the Guarantor, as the case may be, on the Securities after such withholding or deduction (and after deducting for or on account of any taxes on the Additional Amounts) shall Brazilian Taxes, Dutch Taxes or Foreign Taxes will equal the respective amounts that of principal, premium, if any, and interest which would have been received by receivable in respect of such beneficial owner Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required; provided , except that no such Additional Amounts shall be payablepayable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or on account of:
other governmental charges in respect of such Security by reason of (a) a connection between the Holder and a Relevant Taxing Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (b) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note Company or the receipt of payments or Guarantor, as applicable, has given the enforcement of rights thereunder, including, without limitation, Holders at least 30 days’ notice that Holders will be required to comply with such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinrequirement;
(2ii) the presentation in respect of any such Note taxes, duties, assessments or other governmental charges with respect to a Security surrendered (in cases in which presentation if surrender is required) more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided forfor and notice thereof given to Holders, whichever occurs later, except to the extent that the holder or beneficial owner Holder of such Note Security would have been entitled to such Additional Amounts on presenting surrender of such Note Security for payment on any date during the last day of such 30-day period; or
Table of Contents (3iii) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning where such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as is imposed on a payment to which Additional Amounts would have otherwise been payable an individual and is required to such Holder or beneficial owner;
(b) be made pursuant to any estateEuropean Union Directive on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA 2000 or any law enacted by such other jurisdiction to give effect to such agreementimplementing or complying with, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred introduced in order to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, onconform to, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.directive;
Appears in 1 contract
Sources: Indenture (Embraer S.A.)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or If any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed or levied by or within any jurisdiction in which where the Company Company, a Subsidiary Guarantor or any a successor of either (a "Payor") is organized or otherwise considered by a taxing authority to the Company is, be a resident for tax purposes, organized or otherwise resident or any jurisdiction from or through which the Payor makes a payment is made (or on the Securities, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy therein having the force power to tax (the "Relevant Tax Jurisdiction") in respect of law. In any payments under the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company shall Payor will pay to each Holder of a Security, to the extent it may lawfully do so, such additional amounts (“"Additional Amounts”") as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by specified in such Security to which such Holder is entitled; provided, however, the beneficial owner after such withholding or deduction (and after deducting Payor will not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(a1) any Any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, Tax Jurisdiction including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such Note a Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, whichever occurs later (in either case (x) or (y), except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note had the Security been presented for payment on any date during such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner);
(b2) any Any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c3) any Any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure by the Holder or the beneficial owner of the Security to comply with respect a reasonable and timely request of the Payor addressed to the Notes;
(d) any taxHolder to provide information, assessmentdocuments or other evidence concerning the nationality, withholding residence or deduction identity of the Holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or other official guidance enacted in any administrative practice of the taxing jurisdiction implementing FATCAas a precondition to exemption from all or part of such tax, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments assessment or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(ii4) Any combination of the above; nor will Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, premium or interest on, such Note any Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of that 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 under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that partnership such partnership, limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawsuch Security. The Company Payor will furnish to provide the trustee, within 30 days after Trustee with the date official acknowledgment of the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment Relevant Tax Authority (or, if such receipts are acknowledgment is not obtainableavailable, other evidence a certified copy thereof) evidencing the payment of payments reasonably satisfactory to the Trusteewithholding taxes by the Payor. Upon request, copies Copies of those receipts or other evidence of payments, as the case may be, such documentation will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) Securities or the Paying Agents, as applicable, upon request therefor. The Company and the Subsidiary Guarantors will pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingwhich arise in any jurisdiction from the execution, in each case, interest and penalties) payable in respect delivery or registration of the creation, issue, offering, execution, delivery, registration, enforcement Securities or making payments in respect any other document or instrument referred to therein (other than a transfer of the NotesSecurities), or the receipt of any documentation payments with respect theretoto the Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside the Republic of the ▇▇▇▇▇▇▇▇ Islands or any jurisdiction in which a paying agent is located, other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after Securities or any other such document or instrument following the occurrence and during the continuance of a default any Event of Default with respect to the Notes.
(d) Any reference Securities. All references in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Priceof, premium, if applicableany, and interest on the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to Securities will include any Additional AmountsAmounts payable by the Payor in respect of such principal, unless the context requires otherwisesuch premium, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10if any, and such interest.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (General Maritime Corp/)
Payment of Additional Amounts. (a) All Unless otherwise required by Bermuda law, neither the Company nor any Guarantor will deduct or withhold from payments made with respect to the Securities and deliveries made by the Guarantees, if any, on account of any present or future Taxes. In the event that either the Company or any successor Guarantor is required to the Company withhold or deduct on account of any Taxes due from any payment made under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company Securities or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachGuarantees, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredcase may be, the Company or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall each Holder of Securities will equal the amounts amount that the Holder would have received if the Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
payable with respect to a payment made to a Holder to the extent: (a) that any tax, duty, assessment or other governmental charge that Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionBermuda, other than merely holding the mere receipt of the payment, acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder the Securities, includingthe Guarantees, without limitationif any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (b) that any such Holder or beneficial owner being or having Taxes would not have been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) imposed but for the presentation of such Note (in cases in which the Securities, where presentation is required) , for payment on a date more than 30 days after the later of the date on which the payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
(3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant Taxing Jurisdiction relevant taxing authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes; and (ii) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment with respect to which the Notes;
Company or such Guarantor shall apply this clause (d) any tax), assessment, withholding the Company or deduction such Guarantor shall have notified all Holders of the Securities in writing that they shall be required by FATCA, any current to provide this declaration or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
claim; (e) any combination Taxes imposed under Sections 1471 through 1474 of taxesthe Code, dutiesany successor law or regulation implementing or complying with, assessments or other governmental charges referred introduced in order to in conform to, such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the preceding clauses Code; (a), f) any Taxes imposed on overall net income or any branch profits Taxes; (b), (cg) that a beneficiary or (d); or
(ii) settlor with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of that payment to the extent that any such payment would be required to be included in the income under the laws payment; or (h) any combination of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) foregoing. The Company will make any required withholding and such Guarantor shall also (w) withhold or deduction of taxes and deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing jurisdiction authority in accordance with all applicable law. The Company will furnish laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the trusteeHolders of the Securities, within 30 60 days after the date the payment of any taxes so Taxes deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if such receipts the same are not obtainable, other evidence of payments reasonably satisfactory to the Trusteesuch payments. Upon requestIn addition, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company or any Guarantor will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable in the foregoing with respect of to the creation, issue, offering, executionenforcement, deliveryredemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, registrationif the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, enforcement the Company (or making payments in respect of the NotesGuarantees, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect Guarantor) shall deliver to the Notes.
(d) Any reference Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including the Fundamental Change Repurchase Pricedefaulted interest), if applicableany, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable on or with respect to any of the Securities, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10.
(e) The foregoing obligations shall survive termination 3.07 to the extent that, in such context, Additional Amounts are, were or discharge would be payable in respect thereof pursuant to the provisions of this IndentureSection 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Sources: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture pursuant to Section 3.01 establishing the Company under or with respect to this Indenture and the Notesterms of a particular series of Securities, including, but not limited to, all payments of principal (including the Fundamental Change Repurchase Priceand premium, if applicable, any) and the Redemption Priceinterest and Deferred Interest, if applicable), payments any by or on behalf of interest, including the Issuer in respect of any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Security will be made 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 or within any jurisdiction in which on behalf of the Company or any successor to the Company isUnited Kingdom, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision sub-division of, or taxing any authority thereof of, or therein) in, the United Kingdom having power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), unless such the withholding or deduction of such taxes, duties, assessments or governmental charges is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or Issuer will in respect of payments of principal (and premium, if any) and interest and Deferred Interest, if any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) on the Security as may shall be necessary to ensure in order that the net amount received by the beneficial owner Holder of the Security after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that which would have been received by receivable in respect of the Security in the absence of any requirements to make such beneficial owner had no such presented for withholding or deduction been required; provided (“Additional Amounts”), except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in relation to any tax, duty, assessment or other governmental charge that would not have been imposed but forSecurity:
(1) the existence of any present presented for payment by, or former connection between the relevant on behalf of, a Holder who is liable for such taxes, duties or beneficial owner governmental charges in respect of such Note and Security by reason of his having some connection with the Relevant Taxing Jurisdiction, Jurisdiction other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation presented for payment by, or on behalf of, a holder who would be able to avoid such withholding or deduction by complying with any statutory requirements (including, but not limited to, obtaining and/or presenting any form of such Note certificate) or by mailing a declaration or any other statement or claim for exemption (in cases in which presentation is requiredincluding, but not limited to, a declaration of nonresidence), but fails to do so; or
(3) presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts on presenting such Note the Security for payment on any date during such 30-thirtieth day period; or
(3) the failure of the Holder or beneficial owner assuming that day to comply with have been a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Payment Day. No Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and on) or interest, including any Additional if any, or Deferred Interest, on, if any on any such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction such Security. Whenever in accordance with applicable law. The Company will furnish to the trusteethis Subordinated Indenture there is mentioned, within 30 days after the date in any context, the payment of any taxes so deducted the principal of (or withheld is due pursuant to applicable lawpremium, either certified copies of tax receipts evidencing such payment if any, on) or interest, if any, or Deferred Interest (or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
Perpetual Subordinated Capital Securities, any other payments), if any on any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in the terms of such Securities and this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (dif applicable) Any reference in this Indenture or the Notes in any context provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts as contemplated by Section 3.01(17), at least 10 days prior to the delivery first Interest Payment Date with respect to that series of ADSs Securities (together or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest and Deferred Interest, if any, if there has been any change with payments respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer will furnish the Subordinated Trustee for that series of cash for any fractional ADSs) upon conversion of the Notes or the Securities with an Officers’ Certificate instructing such Subordinated Trustee whether such payment of principal of (including the Fundamental Change Repurchase Priceand premium, if applicableany, on) and interest, if any, and Deferred Interest, if any, on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment, duty or other governmental charge referred to above or described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer will pay to the Subordinated Trustee for such series of Securities such Additional Amounts as may be required pursuant to the terms applicable to such series. The Issuer covenants to indemnify the Subordinated Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.07 or the failure to provide any such Officers’ Certificate. The obligations contained in the immediately preceding sentence of the Issuer shall survive payment of all of the Securities, the satisfaction and discharge of this Subordinated Indenture, and the Redemption Price, if applicable), and any premium resignation or interest, including any Additional Interest, on, any Note removal of the Subordinated Trustee or any other amount payable with respect to Paying Agent for such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10series of Securities.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. Any and all payments to a Holder of principal (aand premium, if any) All payments and deliveries made by the Company or any successor to the Company under or with interest in respect to this Indenture and of the Notes, includingand any and all payments to indemnify a Holder for taxes or duties as a result of a substitution of the issuer, but not limited toas provided in Section 14.1(a)(2), payments of principal (including the Fundamental Change Repurchase Price, if applicablewill be made free and clear of, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any and all present or and future withholding taxes, duties, assessments assessments, levies, imposts or governmental charges of whatever nature (“Taxes”) whatsoever imposed or levied by or within any jurisdiction in which the Company or any successor to the Company ison behalf of, for tax purposesLuxembourg, organized or otherwise resident or from or through which payment is made (Brazil, Peru or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company Issuer or any successor to a Guarantor, as the Company case may be, shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the beneficial owner after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner had them if no such withholding or deduction had been required; provided , except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in respect of any tax, duty, assessment or other governmental charge that would not have been imposed but forNote:
(1) the existence held by, or by a third party on behalf of, a Holder or beneficial owner which is liable for such taxes, duties, assessments, levies, imposts or governmental charges in respect of any such Note by reason of its (or a fiduciary, settlor, member or shareholder, beneficiary of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) having some present or former connection between the relevant Holder with Luxembourg, Brazil or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner Peru (including being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction Luxembourg, Brazil or treated as a resident thereof Peru or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;) other than the mere holding of such Note; or
(2) the presentation of such Note where (in cases in which presentation the case of a payment of principal, premium, if any, or interest on the Maturity Date or date of earlier redemption) the relevant Note is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts if it had surrendered the relevant Note on presenting the last day of such Note for payment on any date during such 30-day periodperiod of 30 days; or
(3) if such Tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar Tax, assessment, levy, impost or governmental charge; or
(4) if such amount is (a) payable other than by withholding or deduction from a payment on such Note, or (b) required to be withheld or deducted by a Paying Agent and such Holder of a Note would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent; or
(5) if such Tax, duty, assessment, levy, impost or governmental charge would not have been imposed but for the failure of the such Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide applicable certification, information, documents documentation or other evidence reporting requirements concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with Luxembourg, Brazil or Peru of the Relevant Taxing Jurisdiction, Holder or to make any declaration or satisfy any other reporting requirement relating to beneficial owner of such matters, Note if and to the extent that due and timely (i) such compliance with such request is required by statute, regulation as a precondition to relief or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any exemption from withholding or deduction as to which Additional Amounts would have otherwise been payable to of all or part of such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment assessment, levy, impost or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment at least 30 days prior to the extent that such payment would be required to be included in date on which the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership Issuer or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of paymentsGuarantor, as the case may be, applies this clause (5), it will have notified such Holder or beneficial owner of a Note that it will be made available by the Trustee required to the Holders or beneficial owners of the Notes.comply with such requirement; or
(c6) in the Company will pay case of any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies combination of items (including, in each case, interest and penalties1) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notesthrough (5).
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (VM Holding S.A.)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuers will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the "Additional Amounts") as may be necessary in order that every net payment or deemed payment of (i) principal, premium and interest, if any, with respect to this Indenture and a Security, or (ii) net proceeds on the Notessale or exchange of a Security, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided provided, however, that no such Additional Amounts shall be payablepayable in respect of any Security for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Security;
(2b) the presentation of presented such Note Security for payment in The Bahamas or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Security for payment more than 30 days after the later of the date on which the payment in respect of such Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note Security for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orSecurity;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Security to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.Security; or
(b4) The Company will make any required withholding or deduction combination of taxes items (1), (2) and remit the full amount deducted or withheld to the relevant taxing jurisdiction (3). Whenever there is mentioned herein in accordance with applicable law. The Company will furnish to the trusteeany context, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and or any premium or interest, including any Additional Interest, interest on, or in respect of, any Note Security or the net proceeds received on the sale or exchange of any other amount payable with respect to Security, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts provided for in this Indenture to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to this Indenture. Without limiting a Holder's right to receive payment of Additional Amounts, unless in the context requires otherwise, event that are or may be payable Additional Amounts actually paid with respect to the Securities are based on rates of deduction or withholding of Bahamian taxes in excess of the appropriate rate applicable to the Holder of such Securities and, as a result thereof, such Holder of Securities is entitled to make a claim for a refund or credit of such excess, then such Holder of Securities shall, by accepting the Securities and receiving a payment of Additional Amounts, 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 Issuers. By making such assignment, the Holder of Securities makes no representation or warranty that amount under the obligations referred Issuers will be entitled to in this Section 5.10receive such claim for a refund or credit and incurs no other obligation with respect thereto.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture pursuant to Section 3.01 establishing the Company under or with respect to this Indenture and the Notesterms of a particular series of Securities, including, but not limited to, all payments of principal (including and interest by or on behalf of the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments Issuer in respect of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Security will be made 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 or within any jurisdiction in which on behalf of the Company or any successor to the Company isUnited Kingdom, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision sub-division of, or taxing any authority thereof of, or therein) (eachin, as applicable, a “Relevant Taxing Jurisdiction”)the United Kingdom having power to tax, unless such the withholding or deduction of such taxes, duties, assessments or governmental charges is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company shall Issuer will in respect of payments of principal and interest pay to each Holder such additional amounts (“Additional Amounts”) on the Security as may shall be necessary to ensure in order that the net amount received by the beneficial owner Holder of the Security after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that which would have been received by receivable in respect of the Security in the absence of any requirements to make such beneficial owner had no such presented for withholding or deduction been required; provided (“Additional Amounts”), except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in relation to any tax, duty, assessment or other governmental charge that would not have been imposed but forSecurity:
(1) the existence of any present presented for payment by, or former connection between the relevant on behalf of, a Holder who is liable for such taxes, duties or beneficial owner governmental charges in respect of such Note and Security by reason of his having some connection with the Relevant Taxing Jurisdiction, United Kingdom other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation presented for payment by, or on behalf of, a holder who would be able to avoid such withholding or deduction by complying with any statutory requirements (including, but not limited to, obtaining and/or presenting any form of such Note certificate) or by mailing a declaration or any other statement or claim for exemption (in cases in which presentation is requiredincluding, but not limited to, a declaration of nonresidence), but fails to do so; or
(3) presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date (as defined below) except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts on presenting such Note the Security for payment on any date during such 30-thirtieth day period; or
assuming that day to have been a Payment Day (3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which defined below). No Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and on) or interest, including if any, on any Additional Interest, on, such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes such Security. For the purposes hereof, the “Relevant Date” means the date on which a payment first becomes due and remit payable, except that, if the full amount deducted of the monies payable has not been received by the relevant Paying Agent or withheld the relevant Senior Trustee on or prior to such due date, it means the first date on which, the full amount of such monies having been so received and being available for payment to Holders of the relevant Security, notice to that effect shall have been duly given to the Holders of the relevant taxing jurisdiction in accordance with applicable lawSecurity. The Company will furnish For the purposes of this Section 10.08, a “Payment Day” means any day which is, subject to the trusteeprovisions of Section 10.10, within 30 days after a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in London, England and the date City of New York. Whenever in this Senior Indenture there is mentioned, in any context, the payment of any taxes so deducted the principal of (or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orpremium, if any, on) or interest, if any, on any Security, such receipts are not obtainable, other evidence mention shall be deemed to include mention of payments reasonably satisfactory the payment of Additional Amounts provided for in the terms of such Securities and this Section to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingextent that, in each casesuch context, interest and penalties) Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the creationpayment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts as contemplated by Section 3.01(15), issue, offering, execution, delivery, registration, enforcement or making payments in respect of at least 10 days prior to the Notes, or any documentation first Interest Payment Date with respect thereto, excluding any such taxes, charges to that series of Securities (or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required if the Securities of that series will not bear interest prior to be paid in connection withMaturity, the enforcement first day on which a payment of the Notes after the occurrence principal and during the continuance any premium is made), and at least 10 days prior to each date of a default payment of principal (and premium, if any) and interest, if any, if there has been any change with respect to the Notes.
(d) Any reference matters set forth in this Indenture or the Notes in any context to below-mentioned Officers’ Certificate, the delivery Issuer will furnish the Senior Trustee for that series of ADSs (together Securities with payments of cash for any fractional ADSs) upon conversion of the Notes or the an Officers’ Certificate instructing such Senior Trustee whether such payment of principal of (including the Fundamental Change Repurchase Priceand premium, if applicableany, on) and interest, if any, on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment, duty or other governmental charge referred to above or described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer will pay to the Senior Trustee for such series of Securities such Additional Amounts as may be required pursuant to the terms applicable to such series. The Issuer covenants to indemnify the Senior Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.08 or the failure to provide any such Officers’ Certificate. The obligations contained in the immediately preceding sentence of the Issuer shall survive payment of all of the Securities, the satisfaction and discharge of this Senior Indenture, and the Redemption Price, if applicable), and any premium resignation or interest, including any Additional Interest, on, any Note removal of the Senior Trustee or any other amount payable with respect to Paying Agent for such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10series of Securities.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Senior Indenture
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture pursuant to Section 3.01 establishing the Company under or with respect to this Indenture and the Notesterms of a particular series of Securities, including, but not limited to, all payments of principal (including the Fundamental Change Repurchase Priceand premium, if applicable, any) and the Redemption Priceinterest and Deferred Interest, if applicable), payments any by or on behalf of interest, including the Issuer or the Guarantor in respect of any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Security will be made 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 or within any jurisdiction in which on behalf of the Company United Kingdom or any successor to the Company isHong Kong, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision sub-division of, or taxing any authority thereof of, or therein) in, the United Kingdom or Hong Kong having power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), unless such the withholding or deduction of such taxes, duties, assessments or governmental charges is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company Issuer or the Guarantor, as the case may be, will in respect of payments of principal (and premium, if any) and interest and Deferred Interest, if any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) on the Security as may shall be necessary to ensure in order that the net amount received by the beneficial owner Holder of the Security after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that which would have been received by receivable in respect of the Security in the absence of any requirements to make such beneficial owner had no such presented for withholding or deduction been required; provided (“Additional Amounts”), except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in relation to any tax, duty, assessment or other governmental charge that would not have been imposed but forSecurity:
(1) the existence of any present presented for payment by, or former connection between the relevant on behalf of, a Holder who is liable for such taxes, duties or beneficial owner governmental charges in respect of such Note and Security by reason of his having some connection with the Relevant Taxing Jurisdiction, Jurisdiction other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation presented for payment by, or on behalf of, a Holder who would be able to avoid such withholding or deduction by complying with any statutory requirements (including, but not limited to, obtaining and/or presenting any form of such Note certificate) or by mailing a declaration or any other statement or claim for exemption (in cases in which presentation is requiredincluding, but not limited to, a declaration of nonresidence), but fails to do so; or
(3) presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts on presenting such Note the Security for payment on any date during such 30-thirtieth day period; or
(3) the failure of the Holder or beneficial owner assuming that day to comply with have been a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Payment Day. No Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and on) or interest, including any Additional if any, or Deferred Interest, on, if any on any such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction such Security. Whenever in accordance with applicable law. The Company will furnish to the trusteethis Subordinated Indenture there is mentioned, within 30 days after the date in any context, the payment of the principal of (or premium, if any, on) or interest, if any, or Deferred Interest (or, with respect to the Perpetual Subordinated Capital Securities, any taxes so deducted other payments), if any on any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in the terms of such Securities and this Section to the extent that, in such context, Additional Amounts are, were or withheld is due would be payable in respect thereof pursuant to applicable lawthe provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts as contemplated by Section 3.01(16), either certified copies at least 10 days prior to the first Interest Payment Date with respect to that series of tax receipts evidencing Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest and Deferred Interest, if any, if there has been any change with respect to the matters set forth in the below- mentioned Officers’ Certificate, the Issuer and the Guarantor will furnish the Subordinated Trustee for that series of Securities with an Officers’ Certificate instructing such Subordinated Trustee whether such payment orof principal of (and premium, if such receipts are not obtainableany, other evidence on) and interest, if any, and Deferred Interest, if any, on the Securities of payments reasonably satisfactory that series shall be made to the Trustee. Upon requestHolders of Securities of that series without withholding for or on account of any tax, copies of those receipts assessment, duty or other evidence governmental charge referred to above or described in the Securities of paymentsthat series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer or the Guarantor, as the case may be, will be made available by the Trustee pay to the Holders Subordinated Trustee for such series of Securities such Additional Amounts as may be required pursuant to the terms applicable to such series. The Issuer and the Guarantor, jointly and severally, covenant to indemnify the Subordinated Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or beneficial owners expense reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.07 or the failure to provide any such Officers’ Certificate. The obligations contained in the immediately preceding sentence of the Notes.
(c) Issuer and the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect Guarantor shall survive payment of all of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection withSecurities, the enforcement satisfaction and discharge of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicableSubordinated Indenture, and the Redemption Price, if applicable), and any premium resignation or interest, including any Additional Interest, on, any Note removal of the Subordinated Trustee or any other amount payable with respect to Paying Agent for such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10series of Securities.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Subordinated Indenture
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or If any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges of whatever nature are imposed or levied by or within any jurisdiction in which where the Company Company, a Subsidiary Guarantor or any a successor of either (a “Payor”) is organized or otherwise considered by a taxing authority to the Company is, be a resident for tax purposes, organized or otherwise resident or any jurisdiction from or through which the Payor makes a payment is made (or on the Securities, or, in each case, any political subdivision organization or taxing governmental authority thereof or therein) therein having the power to tax (each, as applicable, a the “Relevant Taxing Tax Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having ) in respect of any payments under the force of law. In the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company shall Payor will pay to each Holder of a Security, to the extent it may lawfully do so, such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by specified in such Security to which such Holder is entitled; provided, however, the beneficial owner after such withholding or deduction (and after deducting Payor will not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(a1) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, Tax Jurisdiction including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such Note a Security (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, whichever occurs later (in either case (x) or (y), except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note had the Security been presented for payment on any date during such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner);
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c3) any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure by the Holder or the beneficial owner of the Security to comply with respect a reasonable and timely request of the Payor addressed to the Notes;
(d) any taxHolder to provide information, assessmentdocuments or other evidence concerning the nationality, withholding residence or deduction identity of the Holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(e4) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)above; or
(ii) nor will Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, premium or interest on, such Note any Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of that 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 under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that partnership such partnership, limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawsuch Security. The Company Payor will furnish to provide the trustee, within 30 days after Trustee with the date official acknowledgment of the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment Relevant Tax Authority (or, if such receipts are acknowledgment is not obtainableavailable, other evidence a certified copy thereof) evidencing the payment of payments reasonably satisfactory to the Trusteewithholding taxes by the Payor. Upon request, copies Copies of those receipts or other evidence of payments, as the case may be, such documentation will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) Securities or the Paying Agents, as applicable, upon request therefor. The Company and the Subsidiary Guarantors will pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, or any other excise or property taxes, charges or similar levies (includingwhich arise in any jurisdiction from the execution, in each case, interest and penalties) payable in respect delivery or registration of the creation, issue, offering, execution, delivery, registration, enforcement Securities or making payments any other document or instrument referred to in respect this Indenture (other than a transfer of the NotesSecurities), or the receipt of any documentation payments with respect theretoto the Securities, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Bermuda or any jurisdiction in which a Paying Agent is located, other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after this Indenture or any other such document or instrument following the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference any Event of Default. All references in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Priceof, premium, if applicableany, and interest on the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to Securities will include any Additional AmountsAmounts payable by the Payor in respect of such principal, unless the context requires otherwisesuch premium, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10if any, and such interest.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All Unless otherwise required by Bermuda law, neither the Company nor any Guarantor will deduct or withhold from payments made with respect to the Securities and deliveries made by the Guarantees, if any, on account of any present or future Taxes. In the event that either the Company or any successor Guarantor is required to the Company withhold or deduct on account of any Taxes due from any payment made under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company Securities or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachGuarantees, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredcase may be, the Company or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall each Holder of Securities will equal the amounts amount that the Holder would have received if the Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
payable with respect to a payment made to a Holder to the extent: (a) that any tax, duty, assessment or other governmental charge that Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionBermuda, other than merely holding the mere receipt of the payment, acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder the Securities, includingthe Guarantees, without limitationif any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (c) that any such Holder or beneficial owner being or having Taxes would not have been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) imposed but for the presentation of such Note (in cases in which the Securities, where presentation is required) , for payment on a date more than 30 days after the later of the date on which the payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
(3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant Taxing Jurisdiction relevant taxing authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes; and (ii) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment with respect to which the Notes;
Company or such Guarantor shall apply this clause (d) any tax), assessment, withholding the Company or deduction such Guarantor shall have notified all Holders of the Securities in writing that they shall be required by FATCA, any current to provide this declaration or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
claim; (e) any combination Taxes imposed under Sections 1471 through 1474 of taxesthe Code, dutiesany successor law or regulation implementing or complying with, assessments or other governmental charges referred introduced in order to in conform to, such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the preceding clauses Code; (a), f) any Taxes imposed on overall net income or any branch profits Taxes; (b), (cg) that a beneficiary or (d); or
(ii) settlor with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of that payment to the extent that any such payment would be required to be included in the income under the laws payment; or (h) any combination of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) foregoing. The Company will make any required withholding and such Guarantor shall also (w) withhold or deduction of taxes and deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing jurisdiction authority in accordance with all applicable law. The Company will furnish laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the trusteeHolders of the Securities, within 30 60 days after the date the payment of any taxes so Taxes deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if such receipts the same are not obtainable, other evidence of payments reasonably satisfactory to the Trusteesuch payments. Upon requestIn addition, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company or any Guarantor will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable in the foregoing with respect of to the creation, issue, offering, executionenforcement, deliveryredemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, registrationif the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, enforcement the Company (or making payments in respect of the NotesGuarantees, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect Guarantor) shall deliver to the Notes.
(d) Any reference Trustee and the Securities Administrator an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including the Fundamental Change Repurchase Pricedefaulted interest), if applicableany, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable on or with respect to any of the Securities, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10.
(e) The foregoing obligations shall survive termination 3.07 to the extent that, in such context, Additional Amounts are, were or discharge would be payable in respect thereof pursuant to the provisions of this IndentureSection 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Sources: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. (a) All In the event that any payments due and deliveries made by payable on the Company Bonds, or any successor delivery of Shares or other cash payment (if any) on conversion of the Bonds, is subject to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever whatsoever nature imposed (“Taxes”) imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of Singapore, France or the Company United States or any successor to the Company is, for tax purposes, organized or otherwise resident or other jurisdiction from or through which any payment is made on the Bonds (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”Authority thereof), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (the “Additional Amounts”) in respect of such payments as may be necessary to ensure in order that the net amount amounts received by the beneficial owner Holders after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that would have been received by such beneficial owner had no receivable in respect of the Bonds in the absence of such withholding or deduction been required; provided deduction, except that no such Additional Amounts shall be payable:
(i) payable for or on account of:
(a) any tax, duty, assessment or other governmental charge Taxes that would not have been imposed but for:
(1i) the existence of any present or former connection between the relevant Holder or and/or the beneficial owner of such Note Bond and Singapore, France or the Relevant Taxing JurisdictionUnited States, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunderBond, including, without limitation, including such Holder or and/or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;; or
(2ii) the presentation of such Note Bond (in cases in which if presentation is required) more than 30 thirty (30) days after the later of the date on which the any payment on such Bond became due and payable pursuant to the terms thereof or the date that such payment was made or duly provided for, except to the extent that the holder or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting if it had presented such Note Bond for payment on any date during within such thirty (30-) day period; or
(3iii) the failure presentation of such Bond (if presentation is required) for payment in the Holder or beneficial owner to comply with a timely request from the Company or any successor of the CompanyUnited States, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning unless such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would Bond could not have otherwise been payable to such Holder or beneficial owner;presented for payment elsewhere; or
(b) any estate, inheritance, gift, sale, transfer, excisestamp, personal property or similar tax, assessment or other governmental charge;charge including without limitation withholding or deduction imposed on a payment to an individual and required to be made pursuant to any European Union Directive 2003/48/EC on the taxation of savings implementing the conclusions of the ECOFIN Council meeting of November 26-27 2000 or any law implementing or complying with such Directive; or
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than imposed or withheld by withholding from payments under reason of the failure to comply by the Holder or the beneficial owner of the Bond with respect a request by the Company addressed to the Notes;Holder to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner, or to make any declaration or other similar claim or satisfy any information or reporting requirement that is required or imposed by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a precondition to exemption from all or a part of such tax, assessment or other governmental charge; or
(d) any tax, assessment, presented for payment by or on behalf of a holder who would have been able to avoid such withholding or deduction required by FATCA, any current presenting the relevant Bond to another Paying Agent or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted Conversion Agent in any jurisdiction implementing FATCA, any intergovernmental agreement between a Member State of the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCAEuropean Union; or
(e) any combination of taxes, duties, assessments or other governmental charges Taxes referred to in the preceding sub-clauses (a), (b), (c) or and (d); or
(ii) with respect . The Company’s obligation hereunder to any payment of pay the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership Amounts resulted from tax deduction or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income withholding under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect United States shall cease upon the Holders’ election not to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled their Bonds redeemed under Section 3.6. Any reference in this Indenture to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes payment due and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement Bonds or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) Shares upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Bonds shall be deemed also to include any such Additional Amounts, unless the context requires otherwise, Amounts that are or may be payable in accordance with respect to that amount the provisions described in this Indenture and under the obligations referred to in this Section 5.10terms of the Bonds.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Aerkomm Inc.)
Payment of Additional Amounts. (a) 10.7.1 All payments of principal, premium and deliveries made by interest in respect of the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made without withholding or deduction for, or on account of, for any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which on behalf of the Company Cayman Islands, Brazil or any successor Successor Jurisdiction or any authority therein or thereof having power to tax ("FOREIGN TAXES"), except to the Company isextent that such Foreign Taxes are required by the Cayman Islands, for tax purposesBrazil, organized or otherwise resident or from or through which payment is made (such Successor Jurisdiction or any political subdivision such authority to be withheld or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of lawdeducted. In the event that of any such withholding or - 60 - deduction is so requiredfor any Foreign Taxes, the Company or any successor to the Company Guarantor, as the case may be, shall pay to each Holder such additional amounts (“Additional "ADDITIONAL Amounts”") as may be necessary to ensure that the net amount received will result in receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes Holders of Securities on the Additional Amounts) shall equal the respective due dates of such amounts that as would have been received by such beneficial owner them had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required; provided , except that no such Additional Amounts shall be payablepayable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges which would not have been imposed but for (A) a connection between the Holder and the Cayman Islands or Brazil other than the mere holding of such Security and the receipt of payments with respect to such Security or (B) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with the Cayman Islands, Brazil or a Successor Jurisdiction, or applicable political subdivision or authority thereof or therein having power to tax, of such Holder, if compliance is required by such Successor Jurisdiction, or any political subdivision or authority thereof or therein having power to tax as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge and the Company has given the Holders at least 30 days' notice that Holders will be required to provide such certification, identification or other requirement;
(ii) in respect of any such taxes, duties, assessments or other governmental charges with respect to a Security surrendered (if surrender is required) more than 30 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 thereof given to Holders, whichever occurs later, except to the extent that the Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(iii) in respect of estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(iv) in respect of any tax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor;
(v) where such Additional Amount is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the - 61 - ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directive; or
(vi) in respect of any combination of the above. For purposes of the provisions described in Clause (i) above, the term "Holder" of any Security means the direct nominee of any beneficial owner of such Security, which holds such beneficial owner's interest in such Security. Notwithstanding the foregoing, the limitations on the Company's or the Guarantor's obligation to pay Additional Amounts set forth in Clause (i) above shall not apply if the provision of information, documentation or other evidence described in such Clause (i) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Cayman Islands or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Cayman Islands or Brazil), regulation (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, shall promptly provide the Trustee with documentation, if any, (which may consist of certified copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of Foreign Taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers' Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or any interest on such Securities shall be made without deduction or withholding for or on account of:
(a) of any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) charge. If any such deduction or withholding shall be required by the existence of Cayman Islands or Brazil or any present Successor Jurisdiction or former connection between any authority therein having power to tax, then such certificate shall specify, by country, the relevant Holder amount, if any, required to be deducted or beneficial owner withheld on such payment to Holders of such Note Securities, and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial ownerGuarantor, as the case may be, (if payment is then due under the Guaranty) shall pay or cause to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and be paid to the extent that due and timely compliance with Trustee or such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Paying Agent Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premiumAmounts, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawby this Section. The Company will furnish and the Guarantor agree to indemnify the trusteeTrustee and each Paying Agent for, within 30 days after the date the payment and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of - 62 - or in connection with actions taken or omitted by them in reliance on any taxes so deducted or withheld is due Officers' Certificate furnished pursuant to applicable lawthis Section, either certified copies the obligation of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory the Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Trustee. Upon request, copies of those receipts or other evidence of paymentsGuarantor, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will shall pay any all stamp, issue, registration, court, documentary or value added taxesother similar duties, if any, which may be imposed by the Cayman Islands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guaranty.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor from a Holder of a Security pursuant to the text of such Security. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Security is outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers' Certificate, as such certificate may become material in the administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with respect to the Securities pursuant to the preceding paragraph are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Securities, and, as a result thereof, such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Securities, 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 Company or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other excise obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium or property taxesinterest in respect of any Security shall be deemed to mean and include all Additional Amounts, charges or similar levies (includingif any, in each case, interest and penalties) payable in respect of the creationsuch principal, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including unless the context otherwise requires, and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to Additional Interest, on, Amounts in those provisions hereof where such express mention is not made. All references in this Indenture and the Securities to principal in respect of any Note or any other amount payable with respect to such Note, Security shall be deemed to mean and include any Additional Amounts, unless Redemption Price or Repurchase Price payable in respect of such Security pursuant to any redemption or repurchase right hereunder (and all such references to the context requires otherwise, that are Stated Maturity of the principal in respect of any Security shall be deemed to mean and include the Redemption Date or may be payable Repurchase Date with respect to that any such Redemption Price or Repurchase Price), and all such references to principal, premium, interest or Additional Amounts shall be deemed to mean and include any amount under payable in respect hereof pursuant to Section 10.7, and express mention of the obligations referred payment of any Redemption Price or Repurchase Price, or any such other amount in any provision hereof shall not be construed as excluding reference to the payment of any Redemption Price or Repurchase Price, or any such other amounts in this Section 5.10those provisions hereof where such express reference is not made.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Vale Overseas LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or Issuer, Tyco and any successor to the Company other Guarantor under or with respect to this Indenture the Securities and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Guarantees will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Taxing Authority (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless the Issuer, Tyco or such withholding or deduction Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that the Issuer, Tyco or such Guarantor is required to so withhold or deduct any such withholding amount for or deduction is so requiredon account of any Taxes from any payment made under or with respect to the Securities or the Guarantees, as the case may be, the Company Issuer, Tyco or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure so that the net amount received by the beneficial owner each Holder of Securities (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall will equal the amounts amount that such Holder would have received if such Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account ofpayable with respect to a payment made to a Holder of Securities to the extent:
(a) that any tax, duty, assessment or other governmental charge that such Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between such Holder and the relevant Holder or beneficial owner Taxing Authority imposing such Taxes (other than the mere receipt of such Note and the Relevant Taxing Jurisdictionpayment, other than merely holding acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder such Securities, including, without limitation, such Holder the Guarantees or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinthis Indenture);
(2b) of any estate, inheritance, gift, sales, transfer, or personal property Tax imposed with respect to such Securities, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Note Securities (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
(3d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the failure making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the Holder relevant Taxing Authority as a precondition to an exemption from, or beneficial owner to comply with a timely request from reduction in, the Company or any successor of the Companyrelevant Taxes, addressed and (y) at least 60 days prior to the Holder first payment date with respect to which the Issuer, Tyco or beneficial ownersuch Guarantor shall apply this clause (d), the Issuer, Tyco or such Guarantor shall have notified all Holders of Securities in writing that they shall be required to provide such declaration or claim. The Issuer, Tyco or such Guarantor, as applicable, will also (i) make such withholding or deduction of Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant Taxing Authority in accordance with all applicable laws. The Issuer, Tyco or such Guarantor, as applicable, will use their reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer, Tyco or such Guarantor, as the case may be, to provide certificationwill, informationupon request, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and available to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice Holders of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trusteeSecurities, within 30 60 days after the date the payment of any taxes Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Issuer, if Tyco or such receipts Guarantor or if, notwithstanding the Issuer's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments reasonably satisfactory by the Issuer, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the TrusteeSecurities is due and payable, if the Issuer, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer, Tyco or such Guarantor will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Securities on the payment date. Upon requestThe foregoing provisions shall survive any termination of the discharge of this Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Issuer, copies of those receipts Tyco or other evidence of paymentssuch Guarantor, as the case may be, will be made available by is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company Issuer will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg or the United States or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable the foregoing in respect of the creation, issue, offering, executionenforcement, delivery, registration, enforcement redemption or making payments in respect retirement of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.the
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or ----------------------------- Company, Tyco and any successor to the Company other Guarantor under or with respect to this Indenture the Notes and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Guarantees will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Taxing Authority (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless the Company, Tyco or such withholding or deduction Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that the Company, Tyco or such Guarantor is required to so withhold or deduct any such withholding amount for or deduction is so requiredon account of any Taxes from any payment made under or with respect to the Notes or the Guarantees, as the case may be, the Company Company, Tyco or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure so that the net amount received by the beneficial owner each Holder of Notes (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall will equal the amounts amount that such Holder would have received if such Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account ofpayable with respect to a payment made to a Holder of Notes to the extent:
(a) that any tax, duty, assessment or other governmental charge that such Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between such Holder and the relevant Holder or beneficial owner Taxing Authority imposing such Taxes (other than the mere receipt of such Note and the Relevant Taxing Jurisdictionpayment, other than merely holding acquisition, ownership or disposition of such Note Notes or the receipt of payments exercise or the enforcement of rights thereunderunder such Notes, including, without limitation, such Holder the Guarantees or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinthis Indenture);
(2b) of any estate, inheritance, gift, sales, transfer, or personal property Taxes imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Note Notes or Guarantees (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Notes or Guarantees been presented for payment on any date during such 30-day period; or
(3d) that such Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the failure making of such declaration or claim is required or imposed by statute, treaty, regulation, ruling or administrative practice of the Holder relevant Taxing Authority as a precondition to an exemption from, or beneficial owner reduction in, the relevant Taxes, and (y) at least 60 days prior to comply the first payment date with a timely request from the Company or any successor of respect to which the Company, addressed Tyco or such Guarantor shall apply this clause (d), the Company, Tyco or such Guarantor shall have notified all Holders of Notes in writing that they shall be required to the Holder provide such declaration or beneficial ownerclaim. The Company, Tyco or such Guarantor, as the case may be, to provide certification, information, documents or other evidence concerning will also (i) make such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant taxing jurisdiction Taxing Authority in accordance with all applicable lawlaws. The Company Company, Tyco or such Guarantor, as the case may be, will furnish use its reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Company, Tyco or such Guarantor, as the case may be, will, upon request, make available to the trusteeHolders of the Notes, within 30 60 days after the date the payment of any taxes Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Company, if Tyco or such receipts Guarantor or if, notwithstanding the Company's, Tyco's or such Guarantor's efforts to obtain such receipts, the same are not obtainable, other evidence of such payments reasonably satisfactory by the Company, Tyco or such Guarantor. At least 30 days prior to each date on which any payment under or with respect to the TrusteeNotes or Guarantees is due and payable, if the Company, Tyco or such Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company, Tyco or such Guarantor will deliver to the Trustee an Officers' Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and will set forth such other information as is necessary to enable such Trustee to pay such Additional Amounts to Holders of Notes on the payment date. Upon requestIn addition, copies of those receipts the Company, Tyco or other evidence of paymentssuch Guarantor, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in Luxembourg Bermuda or the United States or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable the foregoing in respect of the creation, issue, offering, executionenforcement, delivery, registration, enforcement redemption or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion retirement of the Notes or the Guarantees. The foregoing provisions shall survive any termination or the discharge of the Indenture and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company, Tyco or such Guarantor, as the case may be, is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein; provided, however, the date on which such Person becomes a successor to the Company, Tyco or such Guarantor, as the case may be, shall be substituted for the date on which the series of Notes was issued. Whenever in the Indenture, the Notes or the Guarantees there is mentioned, in any context, the payment of principal of (including the Fundamental Change Repurchase Priceand premium, if applicable, and the Redemption Price, if applicableany), and any premium or interestredemption price, including any Additional Interest, on, any Note interest or any other amount payable under or with respect to any Notes or Guarantees, such Note, mention shall be deemed to include any mention of the payment of Additional AmountsAmounts to the extent that, unless the context requires otherwisein such context, that are Additional Amounts are, were or may would be payable with in respect to that amount under the obligations referred to in this Section 5.10thereof.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Supplemental Indenture (Tyco International LTD /Ber/)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor The Issuers will, subject to the Company under limitations and exceptions set forth below, pay to each Holder such amounts (the "Additional Amounts") as may be necessary in order that every net payment or deemed payment of (i) principal, premium and interest, if any, with respect to this Indenture and a Security, or (ii) net proceeds on the Notessale or exchange of a Security, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash each after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or within any jurisdiction in which on behalf of the Company government of The Bahamas or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will result in the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received receipt by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal Holders of the amounts that would have been received by such beneficial owner them had no such deduction or withholding or deduction been required; provided provided, however, that no such Additional Amounts -------- ------- shall be payablepayable in respect of any Security for:
(i) for or on account of:
(a1) any tax, duty, assessment assessment, or other governmental charge that which would not have been imposed but forfor the fact that such Holder:
(1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been is a nationalresident, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present national of, or engaged in a trade business or business therein or having or having had maintains a permanent establishment thereinor was physically present in, The Bahamas or any political subdivision thereof or therein or otherwise has some connection with The Bahamas other than the mere ownership of, or receipt of payment under, such Security;
(2b) the presentation of presented such Note Security for payment in The Bahamas or any political subdivision thereof or therein, unless such Security could not have been presented for payment elsewhere; or
(in cases in which presentation is requiredc) presented such Security for payment more than 30 days after the later of the date on which the payment in respect of such Security became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting if it had presented such Note Security for payment on any date during day within such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b2) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in that are payable otherwise than by deduction or withholding from payments on the preceding clauses (a), (b), (c) or (d); orSecurity;
(ii3) with respect to any payment of tax, duty, assessment, or other governmental charge imposed on a Holder that is not the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment a Security to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such the payment of Additional Amounts had that beneficiary, settlor, partner or the beneficial owner been directly held the Holder thereof.Security; or
(b4) The Company will make any required withholding or deduction combination of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
items (c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable1), (2) and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10(3).
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All Unless otherwise required by Bermuda law, neither the Company nor any Guarantor will deduct or withhold from payments made with respect to the Securities and deliveries made by the Guarantees, if any, on account of any present or future Taxes. In the event that either the Company or any successor Guarantor is required to the Company withhold or deduct on account of any Taxes due from any payment made under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company Securities or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachGuarantees, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredcase may be, the Company or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall each Holder of Securities will equal the amounts amount that the Holder would have received if the Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
payable with respect to a payment made to a Holder to the extent: (a) that any tax, duty, assessment or other governmental charge that Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionBermuda, other than merely holding the mere receipt of the payment, acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder the Securities, includingthe Guarantees, without limitationif any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (c) that any such Holder or beneficial owner being or having Taxes would not have been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) imposed but for the presentation of such Note (in cases in which the Securities, where presentation is required) , for payment on a date more than 30 days after the later of the date on which the payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
(3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant Taxing Jurisdiction relevant taxing authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes; and (ii) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment with respect to which the Notes;
Company or such Guarantor shall apply this clause (d) any tax), assessment, withholding the Company or deduction such Guarantor shall have notified all Holders of the Securities in writing that they shall be required by FATCA, any current to provide this declaration or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
claim; (e) any combination Taxes imposed under Sections 1471 through 1474 of taxesthe Code, dutiesany successor law or regulation implementing or complying with, assessments or other governmental charges referred introduced in order to in conform to, such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the preceding clauses Code; (a), f) any Taxes imposed on overall net income or any branch profits Taxes; (b), (cg) that a beneficiary or (d); or
(ii) settlor with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of that payment to the extent that any such payment would be required to be included in the income under the laws payment; or (h) any combination of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) foregoing. The Company will make any required withholding and such Guarantor shall also (w) withhold or deduction of taxes and deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing jurisdiction authority in accordance with all applicable law. The Company will furnish laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the trusteeHolders of the Securities, within 30 60 days after the date the payment of any taxes so Taxes deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if such receipts the same are not obtainable, other evidence of payments reasonably satisfactory to the Trusteesuch payments. Upon requestIn addition, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company or any Guarantor will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable in the foregoing with respect of to the creation, issue, offering, executionenforcement, deliveryredemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, registrationif the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, enforcement the Company (or making payments in respect of the NotesGuarantees, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect Guarantor) shall deliver to the Notes.
(d) Any reference Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including the Fundamental Change Repurchase Pricedefaulted interest), if applicableany, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable on or with respect to any of the Securities, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10.
(e) The foregoing obligations shall survive termination 3.07 to the extent that, in such context, Additional Amounts are, were or discharge would be payable in respect thereof pursuant to the provisions of this IndentureSection 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable).
Appears in 1 contract
Sources: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture pursuant to Section 3.01 establishing the Company under or with respect to this Indenture and the Notesterms of a particular series of Securities, including, but not limited to, all payments of principal (including the Fundamental Change Repurchase Priceand premium, if applicable, any) and the Redemption Priceinterest and Deferred Interest, if applicable), payments any by or on behalf of interest, including the Issuer or the Guarantor in respect of any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Security will be made 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 or within any jurisdiction in which on behalf of the Company United Kingdom or any successor to the Company isHong Kong, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision sub-division of, or taxing any authority thereof of, or therein) in, the United Kingdom or Hong Kong having power to tax (each, as applicable, a the “Relevant Taxing Jurisdiction”), unless such the withholding or deduction of such taxes, duties, assessments or governmental charges is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company Issuer or the Guarantor, as the case may be, will in respect of payments of principal (and premium, if any) and interest and Deferred Interest, if any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) on the Security as may shall be necessary to ensure in order that the net amount received by the beneficial owner Holder of the Security after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts that which would have been received by receivable in respect of the Security in the absence of any requirements to make such beneficial owner had no such presented for withholding or deduction been required; provided (“Additional Amounts”), except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in relation to any tax, duty, assessment or other governmental charge that would not have been imposed but forSecurity:
(1) the existence of any present presented for payment by, or former connection between the relevant on behalf of, a Holder who is liable for such taxes, duties or beneficial owner governmental charges in respect of such Note and Security by reason of his having some connection with the Relevant Taxing Jurisdiction, Jurisdiction other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation presented for payment by, or on behalf of, a Holder who would be able to avoid such withholding or deduction by complying with any statutory requirements (including, but not limited to, obtaining and/or presenting any form of such Note certificate) or by mailing a declaration or any other statement or claim for exemption (in cases in which presentation is requiredincluding, but not limited to, a declaration of nonresidence), but fails to do so; or
(3) presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts on presenting such Note the Security for payment on any date during such 30-thirtieth day period; or
(3) the failure of the Holder or beneficial owner assuming that day to comply with have been a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Payment Day. No Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and on) or interest, including any Additional if any, or Deferred Interest, on, if any on any such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to such the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction such Security. Whenever in accordance with applicable law. The Company will furnish to the trusteethis Subordinated Indenture there is mentioned, within 30 days after the date in any context, the payment of the principal of (or premium, if any, on) or interest, if any, or Deferred Interest (or, with respect to the Perpetual Subordinated Capital Securities, any taxes so deducted other payments), if any on any Security, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in the terms of such Securities and this Section to the extent that, in such context, Additional Amounts are, were or withheld is due would be payable in respect thereof pursuant to applicable lawthe provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts as contemplated by Section 3.01(16), either certified copies at least 10 days prior to the first Interest Payment Date with respect to that series of tax receipts evidencing Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest and Deferred Interest, if any, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer and the Guarantor will furnish the Subordinated Trustee for that series of Securities with an Officers’ Certificate instructing such Subordinated Trustee whether such payment orof principal of (and premium, if such receipts are not obtainableany, other evidence on) and interest, if any, and Deferred Interest, if any, on the Securities of payments reasonably satisfactory that series shall be made to the Trustee. Upon requestHolders of Securities of that series without withholding for or on account of any tax, copies of those receipts assessment, duty or other evidence governmental charge referred to above or described in the Securities of paymentsthat series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer or the Guarantor, as the case may be, will be made available by the Trustee pay to the Holders Subordinated Trustee for such series of Securities such Additional Amounts as may be required pursuant to the terms applicable to such series. The Issuer and the Guarantor, jointly and severally, covenant to indemnify the Subordinated Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or beneficial owners expense reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.07 or the failure to provide any such Officers’ Certificate. The obligations contained in the immediately preceding sentence of the Notes.
(c) Issuer and the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect Guarantor shall survive payment of all of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection withSecurities, the enforcement satisfaction and discharge of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicableSubordinated Indenture, and the Redemption Price, if applicable), and any premium resignation or interest, including any Additional Interest, on, any Note removal of the Subordinated Trustee or any other amount payable with respect to Paying Agent for such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10series of Securities.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Subordinated Indenture (Prudential Funding (Asia) PLC)
Payment of Additional Amounts. (a) All payments and deliveries made by In the event that the Company or is required to make any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges taxes imposed by the Republic of whatever nature imposed or levied by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made South Africa (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding from any payment made under or deduction is required by law or by regulation or governmental policy having with respect to the force of law. In the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company shall (a) pay to each Holder such additional amounts of interest (“Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction each Holder (and after deducting any taxes on the including Additional Amounts) shall equal will not be less than the amounts that amount the Holder would have received had such taxes not been received withheld or deducted, and (b) provide to each Holder certified copies of tax receipts evidencing the payment by the Company of the applicable South African taxes within 30 days after the date of such beneficial owner had no such withholding or deduction been requiredpayment; provided PROVIDED, HOWEVER, that no Additional Amounts shall Amount will be payablepayable with respect to a payment made to a non-resident Holder if the tax so imposed is:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdictionconnection, other than merely the holding such Note of Securities or the receipt of payments amounts payable in respect of Securities, between the Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, the enforcement of rights thereunderHolder, if the Holder is an estate, nominee, trust, partnership or corporation) and South Africa or any common monetary area for South Africa purposes, in other words, Lesotho, Namibia, Botswana and Swaziland, including, without limitation, such the Holder (or beneficial owner the fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such Note Securities (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the payment in respect of such Securities first became due and payable pursuant to the terms thereof or was made or duly provided for, whichever occurs later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-the last day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor that period of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(cii) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or beneficial owner of the Securities with a request by the Company addressed to the Holder or beneficial owner (a) to provide information, concerning the nationality, residence or identity of the Holder or beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, regulation or administrative practice of the taxing jurisdictions as a precondition to exemption form all or part of such tax, duty, assessment or other governmental charge;
(iii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;
(iv) any tax, duty, assessment or other governmental charge which is payable otherwise than by deduction or withholding from payments under payment of principal of or with respect to interest on the NotesSecurities;
(dv) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments duty or other governmental charges referred to in charge imposed on a Holder that is not the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment Securities to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment Additional Amounts had the beneficial owner directly held the Securities; or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(cvi) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies combination of items (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicablei), (ii), (iii), (iv) and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10(v) above.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Drdgold LTD)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price1. Unless otherwise provided in a supplemental indenture, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or other governmental charges are imposed by the Relevant Tax Jurisdiction in respect of whatever nature imposed or levied by or within any jurisdiction in which payments under the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company Payor shall pay to each Holder of the Securities, to the extent it may lawfully do so, such additional amounts (“Additional Amounts”) Amounts as may be necessary to ensure in order that the net amounts paid to such Holder will be not less than the amount received by specified in such Securities to which such Holder is otherwise entitled.
2. Notwithstanding the beneficial owner after such withholding or deduction foregoing clause (and after deducting a), the Payor shall not be required to make any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no payment of Additional Amounts shall be payable:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the relevant such Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Note Holder, if such Holder is an estate, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction, Tax Jurisdiction (other than merely holding such Note by reason of the mere ownership of, or the receipt of payments or payment under, the enforcement of rights thereunderSecurities), including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2ii) the presentation of such a Note (in cases in which where presentation is required) for payment on a date more than 30 days after the later of (x) the date on which the such payment became due and payable pursuant to or (y) the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerwhichever occurs later;
(b) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that which is payable otherwise than by withholding from payments under payment of (or with in respect to of) principal of, premium, if any, or any interest on, the Notes;
(d) any tax, assessmentassessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial owner of the Notes to comply with a request of the Payor addressed to such Holder to provide information, withholding documents or deduction other evidence concerning the nationality, residence or identity of such Holder or such beneficial owner which is required by FATCAa statute, any current or future Treasury Regulations or rulings promulgated thereunder, any lawtreaty, regulation or administrative practice of the Relevant Tax Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCAgovernmental charge; or
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)above; or
(ii) nor shall Additional Amounts be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Priceof, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including or any Additional Interest, premium or interest on, such Note any Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person limited liability company or other than the sole beneficial owner of that 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 under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a limited liability company or beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereofof such Security.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made by In the event that the Company or is required to make any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or governmental charges taxes imposed by the Republic of whatever nature imposed or levied by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made South Africa (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding from any payment made under or deduction is required by law or by regulation or governmental policy having with respect to the force of law. In the event that any such withholding or deduction is so requiredSecurities, the Company or any successor to the Company shall (a) pay to each Holder such additional amounts of interest (“Additional Amounts”"ADDITIONAL AMOUNTS") as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction each Holder (and after deducting any taxes on the including Additional Amounts) shall equal will not be less than the amounts that amount the Holder would have received had such taxes not been received withheld or deducted, and (b) provide to each Holder certified copies of tax receipts evidencing the payment by the Company of the applicable South African taxes within 30 days after the date of such beneficial owner had no such withholding or deduction been requiredpayment; provided PROVIDE, HOWEVER, that no Additional Amounts shall Amount will be payablepayable with respect to a payment made to a non-resident Holder if the tax so imposed is:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that would not have been imposed but for:
for (1a) the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdictionconnection, other than merely the holding such Note of Securities or the receipt of payments amounts payable in respect of Securities, between the Holder (or between a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, the enforcement of rights thereunderHolder, if the Holder is an estate, nominee, trust, partnership or corporation) and South Africa or any common monetary area for South Africa purposes, in other words, Lesotho, Namibia, Botswana and Swaziland, including, without limitation, such the Holder (or beneficial owner the fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
therein or (2b) the presentation of such Note Securities (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the payment in respect of such Securities first became due and payable pursuant to the terms thereof or was made or duly provided for, whichever occurs later, except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-the last day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor that period of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner30 days;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(cii) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or beneficial owner of the Securities with a request by the Company addressed to the Holder or beneficial owner (a) to provide information, concerning the nationality, residence or identity of the Holder or beneficial owner or (b) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (a) or (b), is required or imposed by a statute, regulation or administrative practice of the taxing jurisdictions as a precondition to exemption form all or part of such tax, duty, assessment or other governmental charge;
(iii) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;
(iv) any tax, duty, assessment or other governmental charge which is payable otherwise than by deduction or withholding from payments under payment of principal of or with respect to interest on the NotesSecurities;
(dv) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments duty or other governmental charges referred to in charge imposed on a Holder that is not the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment Securities to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment Additional Amounts had the beneficial owner directly held the Securities; or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(cvi) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies combination of items (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicablei), (ii), (iii), (iv) and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10(v) above.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All Unless otherwise required by Bermuda law, neither the Company nor any Guarantor will deduct or withhold from payments made with respect to the Securities and deliveries made by the Guarantees, if any, on account of any present or future Taxes. In the event that either the Company or any successor Guarantor is required to the Company withhold or deduct on account of any Taxes due from any payment made under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company Securities or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (eachGuarantees, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredcase may be, the Company or any successor to such Guarantor, as the Company shall case may be, will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure so that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall each Holder of Securities will equal the amounts amount that the Holder would have received if the Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account of:
payable with respect to a payment made to a Holder to the extent: (a) that any tax, duty, assessment or other governmental charge that Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing JurisdictionBermuda, other than merely holding the mere receipt of the payment, acquisition, ownership or disposition of such Note Securities or the receipt of payments exercise or the enforcement of rights thereunderunder the Securities, includingthe Guarantees, without limitationif any, or this Indenture; (b) of any estate, inheritance, gift, sales, transfer or personal property Taxes imposed with respect to the Securities or any other Taxes payable other than by withholding or deduction, except as described below or as otherwise provided in this Indenture; (b) that any such Holder or beneficial owner being or having Taxes would not have been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) imposed but for the presentation of such Note (in cases in which the Securities, where presentation is required) , for payment on a date more than 30 days after the later of the date on which the payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder beneficiary or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Securities been presented for payment on any date during such 30-day period; or
(3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if: (i) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant Taxing Jurisdiction relevant taxing authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes; and (ii) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment with respect to which the Notes;
Company or such Guarantor shall apply this clause (d) any tax), assessment, withholding the Company or deduction such Guarantor shall have notified all Holders of the Securities in writing that they shall be required by FATCA, any current to provide this declaration or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
claim; (e) any combination Taxes imposed under Sections 1471 through 1474 of taxesthe Code, dutiesany successor law or regulation implementing or complying with, assessments or other governmental charges referred introduced in order to in conform to, such sections or any intergovernmental agreement or any agreement entered into pursuant to section 1471(b)(1) of the preceding clauses Code; (a), f) any Taxes imposed on overall net income or any branch profits Taxes; (b), (cg) that a beneficiary or (d); or
(ii) settlor with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, a member of a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the holder of a Note in the case of a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of that payment to the extent that any such payment would be required to be included in the income under the laws payment; or (h) any combination of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) foregoing. The Company will make any required withholding and such Guarantor shall also (w) withhold or deduction of taxes and deduct such Taxes as required; (x) remit the full amount of Taxes deducted or withheld to the relevant taxing jurisdiction authority in accordance with all applicable law. The Company will furnish laws; (y) use reasonable efforts to obtain from each relevant taxing authority imposing the Taxes certified copies of tax receipts evidencing the payment of any Taxes deducted or withheld; and (z) upon request, make available to the trusteeHolders of the Securities, within 30 60 days after the date the payment of any taxes so Taxes deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Company or such Guarantor and, notwithstanding the Company’s or such Guarantor’s efforts to obtain the receipts, if such receipts the same are not obtainable, other evidence of payments reasonably satisfactory to the Trusteesuch payments. Upon requestIn addition, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company or any Guarantor will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and additional amounts with respect thereto, payable in Bermuda or the United States, or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable in the foregoing with respect of to the creation, issue, offering, executionenforcement, deliveryredemption or retirement of the Securities or Guarantees. At least 30 days prior to each date on which any payment under or with respect to the Securities is due and payable, registrationif the Company or any Guarantor becomes obligated to pay Additional Amounts with respect to such payment, enforcement the Company (or making payments in respect of the NotesGuarantees, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect Guarantor) shall deliver to the Notes.
(d) Any reference Trustee and the Securities Administrator an Officers’ Certificate stating the fact that such Additional Amounts will be payable, and the amounts so payable and will set forth such other information as is necessary to enable the Trustee or the Paying Agent to pay such Additional Amounts to the Holders on the payment date. Whenever in this Indenture or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of and premium, if any, Additional Amounts, if any, or interest (including the Fundamental Change Repurchase Pricedefaulted interest), if applicableany, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable on or with respect to any of the Securities, such Note, mention shall be deemed to include any mention of the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10.
(e) The foregoing obligations shall survive termination 3.07 to the extent that, in such context, Additional Amounts are, were or discharge would be payable in respect thereof pursuant to the provisions of this Indenture.Section 3.07 and express mention of the payment of Additional Amounts in those provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made (if applicable). If payments with respect of the Securities or any Guarantees become subject generally to the taxing jurisdiction of any Territory or any political subdivision or taxing authority thereof or therein having power to tax, other than or in addition to Bermuda or the United States or any political subdivision or taxing authority therein or thereof having power to tax, immediately upon becoming aware thereof the Company shall notify the Trustee in writing of such event, and thereupon the Company or such Guarantor, as the case may be, shall be obligated to pay Additional Amounts in respect thereof on terms corresponding to the terms of the foregoing provisions of this Section 3.07 with the substitution for (or, as the case may be, in addition to) the references herein to Bermuda or any political subdivision or authority therein or thereof having power to tax of references to that other or additional Territory or any political subdivision
Appears in 1 contract
Sources: Indenture (Nabors Industries Inc)
Payment of Additional Amounts. If specified pursuant to Section 301, the provisions of this Section 1008 shall be applicable to Securities of any series. The Company will pay to a Holder who is a United States Alien such additional amounts (athe "Additional Amounts") All payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments as may be necessary so that every net payment of principal of (including the Fundamental Change Repurchase Priceand premium, if applicableany) and interest on any Security or of any coupon appertaining thereto, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash after deduction or withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxestax, dutiesassessment or other governmental charge imposed upon such Holder, assessments or governmental charges by reason of whatever nature imposed or levied the making of such payment, by or within any jurisdiction in which the Company United States or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless will not be less than the amount provided for in such withholding Security or deduction is required by law or by regulation or governmental policy having the force of lawin such coupon to be then due and payable. In the event that any such withholding or deduction is so The Company shall not be required, the Company or however, to make any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting payment of any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(aA) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
for (1i) the existence of any present or former connection between the relevant 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 beneficial owner of such Note corporation) and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunderUnited States, including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or present therein, or having or having had a permanent establishment therein;
, or (2ii) the presentation of such Note (in cases in which presentation is required) a Security or any coupon appertaining thereto for payment on a date more than 30 10 days after the later of the date on which the such payment became becomes due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial ownerwhichever occurs later;
(bB) any estate, inheritance, gift, salesales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(cC) any tax, duty, assessment or other governmental charge that imposed by reason of such Holder's past or present status as a passive foreign investment company, a controlled foreign corporation, a personal holding company or foreign personal holding company with respect to the United States, or as a corporation which accumulates earnings to avoid United States Federal income tax;
(D) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments under payment of principal of (or premium, if any) or interest on, such Security or coupon;
(E) 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 Security or coupon if such payment can be made without withholding by any other paying agent;
(F) 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 the Holder or beneficial owner of such Security 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 charge;
(G) any tax, assessment or other governmental charge imposed on interest received by (i) 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 (ii) a controlled foreign corporation with respect to the Notes;Company within the meaning of the Code; or
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(eH) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (a), (b), (c) or ), (d), (e), (f) and (g); or
(ii) with respect nor shall any Additional Amounts be paid to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that payment such Security or a coupon appertaining thereto to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, or a member of that such partnership or a beneficial owner who thereof would not have been entitled to the payment of such Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, Securities or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect coupon appertaining thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Lehman Brothers Inc//)
Payment of Additional Amounts. (a) All The Company will make all payments and deliveries made by under the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made Notes without withholding or deduction at source for, or on account of, any present or future taxes, duties, assessments or similar governmental charges of whatever nature imposed (“Taxes”) unless such Taxes are required to be withheld or levied deducted by or within any jurisdiction in which (i) the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made laws (or any political subdivision regulations or rulings promulgated thereunder) of any taxing jurisdiction or (ii) any official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing authority thereof or therein) (each, as applicable, in a “Relevant Taxing Jurisdiction”taxing jurisdiction), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that If any such withholding or deduction at source is so requiredrequired with respect to any Tax imposed or levied by any Relevant Taxing Jurisdiction, the Company or any successor will, subject to the Company shall certain limitations and exceptions described below, pay to each Holder holder of any Notes such additional amounts as may be necessary, if any, so that every net payment of principal, premium, if any, interest or any other amount made to such holder under the Notes, after such withholding or deduction, will equal the amount provided for in the Indenture to be then due and payable (any such additional amounts, “Additional Amounts”).
(b) as may Notwithstanding the foregoing, the Company will not be necessary required to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting pay any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(ai) any tax, duty, assessment or other governmental charge that Tax which would not have been imposed but for:
for the fact that the applicable holder or beneficial owner of a Note (1) is or was a resident, domiciliary or national of, engages or engaged in business in, maintains or maintained a permanent establishment in, or is or was physically present in, the existence of any Relevant Taxing Jurisdiction or had some other present or former connection between with the relevant Holder Relevant Taxing Jurisdiction other than by reason of the mere ownership of, or beneficial owner receipt of payment under, such Note, (2) presented such Note and for payment in the Relevant Taxing Jurisdiction, other than merely holding unless such Note could not have been presented for payment elsewhere, or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(23) the presentation of presented such Note (in cases in which presentation is required) for payment more than 30 days after the later of the date on which the payment in respect of such Note became due and payable pursuant to the terms thereof or was made or duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note would have been entitled to such Additional Amounts on presenting if it had presented such Note for payment on any date during such 30-day within that 30‑day period; or;
(3ii) any estate, inheritance, gift, net worth, wealth, sale, gains, excise, value added transfer, personal property or similar Tax;
(iii) any Tax that is imposed or withheld by reason of the failure of by the Holder holder or beneficial owner of such Note to comply with a timely any reasonable request from by the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, holder within 90 days of such request (1) to provide certification, information, documents or other evidence information concerning such Holder’s or beneficial owner’s the nationality, residence, residence or identity of such holder or connection with the Relevant Taxing Jurisdiction, such beneficial owner or (2) to make any declaration or other similar claim or satisfy any other information or reporting requirement relating to such mattersrequirement, if and to the extent that due and timely compliance with such request which is required or imposed by statute, treaty, regulation or administrative practice of the Relevant Taxing Jurisdiction as a precondition to reduce an exemption from, or eliminate reduction in, such Tax;
(iv) any Tax that is imposed other than by means of withholding in respect of payments made under a Note;
(v) any withholding or deduction imposed pursuant to current Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (or any amended or successor version thereof), any current or future regulations promulgated thereunder or official interpretations thereof, any intergovernmental agreements, treaties or conventions in connection therewith (or any laws, regulations or official administrative guidance implementing such agreements, treaties or conventions), and any agreements entered into pursuant to which Additional Amounts would have otherwise been payable to such Holder Section 1471(b)(1) of the Internal Revenue Code of 1986, as amended (or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property amended or similar tax, assessment or other governmental charge;successor version thereof); or
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (ai), (bii), (ciii), (iv) or and (d); or
(iiv) above. In addition, the Company will not pay Additional Amounts with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder holder who is a fiduciary, fiduciary or partnership or person other than otherwise not the sole beneficial owner of that payment such Note to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdictiona beneficiary, for tax purposes, of a beneficiary partner or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner it been the Holder thereof.
holder of such Note. In order to comply with applicable tax laws (binclusive of rules, regulations and interpretations promulgated by competent authorities) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld related to the relevant taxing jurisdiction Indenture in accordance with applicable laweffect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Company agrees to provide to the Trustee and the Paying Agent information about the parties and/or transactions (including any modification to the terms of such transactions) reasonably requested by the Trustee to allow the Trustee or the Paying Agent to determine whether it has Tax-related obligations under Applicable Law. The Company obligations described in this Section 5.2 will furnish survive any termination, defeasance or discharge of the Indenture. Prior to the trustee, within 30 days after the date on which the payment of any taxes so deducted or withheld is due pursuant to applicable lawAdditional Amounts are due, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or deliver to the Trustee an Officer’s Certificate stating that such Additional Amounts will be payable on the applicable Payment Date and setting forth the amounts so payable and any other excise information necessary to enable the Trustee (or property taxes, charges or similar levies (including, applicable Paying Agent) to pay such Additional Amounts to holders on the Payment Date. Any such Officer’s Certificate will be delivered at least two Business Days in each case, interest and penalties) payable in respect advance of when the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or question are required to be paid in connection with, the enforcement made (unless a shorter period of the Notes after the occurrence and during the continuance of a default with respect time is acceptable to the NotesTrustee in its reasonable discretion).
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Second Supplemental Indenture (Arch Capital Group Ltd.)
Payment of Additional Amounts. (a) All payments and deliveries made by in respect of the Company or any successor to the Company under or with respect to this Indenture and the NotesSecurities, including, but not limited towithout limitation, payments of principal (including the Fundamental Change Repurchase Priceprincipal, interest, if applicableany, and the Redemption Pricepremium, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversionany, shall be made by the Issuer without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments levies, or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or levied established in the future by or within any jurisdiction in which the Company on behalf of The Netherlands or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made authority in The Netherlands (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding Taxes are so imposed or deduction is so requiredestablished, the Company or any successor to the Company Issuer shall pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure in order that the net amount received amounts receivable by the beneficial owner each Holder after such any payment, withholding or deduction (and after deducting any taxes on the Additional Amounts) in respect of such Taxes shall equal the respective amounts that of principal, interest, if any, and premium, if any, which would have been received by receivable in respect of the Securities in the absence of such beneficial owner had payment, withholding or deduction; except that no such withholding or deduction been required; provided that no Additional Amounts shall will be payable:
(i) payable with respect to any payment on any Security to, or to a third party on behalf of, a Holder for or on account of:
(a) of any tax, duty, assessment or other governmental charge such Taxes whatever that would not have been imposed but for:
by reason of (1i) the existence Holder being a resident or deemed a resident of any present The Netherlands or former having some connection between with The Netherlands (including, but not limited to, the relevant situation where a Holder carries on business in The Netherlands through a permanent establishment or beneficial owner permanent representative in The Netherlands) other than the mere holding of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note Security or the receipt of payments principal, interest, if any, or the enforcement of rights thereunderpremium, includingif any, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
respect thereof; (2ii) the presentation by the Holder of such Note (in cases in which presentation is required) a Security for payment on a date more than 30 thirty (30) days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, except to the extent that the holder or beneficial owner of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day periodwhichever occurs later; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(biii) any estate, inheritance, gift, salesales, transfer, excise, transfer or personal property tax or any similar tax, assessment or governmental charge; (iv) any tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that which is payable otherwise than by withholding from payments under on or with in respect to the Notes;
of any Security; or (d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(ev) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses items (ai), (bii), (ciii) or (div); or
(ii) . Furthermore, no Additional Amounts shall be paid with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note on a Security to a Holder, if the Holder that is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who would not have been entitled to such receive the Additional Amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawHolder. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference Whenever in this Indenture or the Notes Securities there is a reference, in any context context, to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interestif any, on, or in respect of, any Note or any other amount payable with respect to Security, such Note, payment shall be deemed to include any the payment of Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to Amounts provided for in this Section 5.10to the extent that, in such context, Additional Amounts are, were or would be payable in respect of such payment pursuant to the provisions of such Section and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Ahold Finance Usa Inc)
Payment of Additional Amounts. (a) All payments and deliveries made by the | The Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, shall make all payments of principal (including and interest in respect of the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made Notes without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (United Kingdom or any political subdivision or taxing any authority thereof or thereintherein having power to tax ("Taxes") (each, as applicable, a “Relevant Taxing Jurisdiction”)with respect to payments of interest and principal on the Notes, unless such withholding or deduction is required by law or by regulation the official judicial or governmental policy having administrative interpretation thereof; provided, however, that if the force law of law. In the event United Kingdom should require that any such payments in respect of the Notes of a series be subject to withholding or deduction is so requiredwith respect to any Taxes imposed or levied by, or on behalf of, such jurisdiction or any authority therein or thereof having power to tax, the Company or any successor shall, to the Company shall fullest extent then permitted by law, pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the net amount amounts received by a Holder of Notes of such series who is not resident in the beneficial owner United Kingdom for tax purposes after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts of principal and interest, if any, that would otherwise have been received by receivable in respect of the Notes of such beneficial owner had no series in the absence of such withholding or deduction been required(the "Additional Amounts"); provided except that no such Additional Amounts shall be payable:
(i) payable with respect to any Note of such series presented for or on account ofpayment:
(a) any tax, duty, assessment by or other governmental charge that would not have been imposed but for:
on behalf of a Holder of a Note (1including a beneficial owner) the existence of any present or former connection between the relevant Holder or beneficial owner who is liable for such Taxes in respect of such Note and by reason of such Holder having some connection with the Relevant Taxing Jurisdiction, United Kingdom other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinNote;
(2b) where such withholding or deduction could have been avoided by the Holder making a declaration of non-residence or other similar claim for exemption to any authority of or in the United Kingdom;
(c) where (in the case of a payment of principal or interest on final redemption) the presentation of such relevant Note (in cases in which presentation is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30-day period; or
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to had surrendered the Notesrelevant Note on the last day of such period of 30 days;
(d) any tax, assessment, where such withholding or deduction is imposed on a payment to an individual and is required by FATCA, any current to be made pursuant to European Council Directive 2003/48/EC or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA Directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 on the taxation of savings income or any law enacted by such other jurisdiction to give effect to such agreementimplementing or complying with, or any agreement with the U.S. Internal Revenue Service under FATCAintroduced in order to conform to, such Directive; or
(e) where the relevant Note is surrendered for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union. If the Directive is promulgated, the Company undertakes to maintain a Paying Agent in a European Union member state that will not be obliged to withhold or deduct Taxes pursuant to the Directive if such a member state exists. If the Company, or its successor, becomes subject at any combination of taxestime to any taxing jurisdiction other than the United Kingdom, duties, assessments or other governmental charges referred references in this Section to in the preceding clauses (a), (b), (c) or (d); or
(ii) United Kingdom with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment Amounts shall be construed as references to the extent that United Kingdom and/or such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofother successor jurisdiction.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Pearson PLC)
Payment of Additional Amounts. (a) All payments and deliveries made by the The Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, shall make all payments of principal (including and interest in respect of the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made Notes without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (United Kingdom or any political subdivision or taxing any authority thereof or thereintherein having power to tax (“Taxes”) (each, as applicable, a “Relevant Taxing Jurisdiction”)with respect to payments of interest and principal on the Notes, unless such withholding or deduction is required by law or by regulation the official judicial or governmental policy having administrative interpretation thereof; provided, however, that if the force law of law. In the event United Kingdom should require that any such payments in respect of the Notes of a series be subject to withholding or deduction is so requiredwith respect to any Taxes imposed or levied by, or on behalf of, such jurisdiction or any authority therein or thereof having power to tax, the Company or any successor shall, to the Company shall fullest extent then permitted by law, pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the net amount amounts received by a Holder of Notes of such series who is not resident in the beneficial owner United Kingdom for tax purposes after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the respective amounts of principal and interest, if any, that would otherwise have been received by receivable in respect of the Notes of such beneficial owner had no series in the absence of such withholding or deduction been required(the “Additional Amounts”); provided except that no such Additional Amounts shall be payable:
(i) payable with respect to any Note of such series presented for or on account ofpayment:
(a) any tax, duty, assessment by or other governmental charge that would not have been imposed but for:
on behalf of a Holder of a Note (1including a beneficial owner) the existence of any present or former connection between the relevant Holder or beneficial owner who is liable for such Taxes in respect of such Note and by reason of such Holder having some connection with the Relevant Taxing Jurisdiction, United Kingdom other than merely the mere holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinNote;
(2b) where such withholding or deduction could have been avoided by the Holder making a declaration of non-residence or other similar claim for exemption to any authority of or in the United Kingdom;
(c) where (in the case of a payment of principal or interest on final redemption) the presentation of such relevant Note (in cases in which presentation is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts if such Holder had surrendered the relevant Note on presenting the last day of such Note for payment on any date during such 30-day period; orperiod of 30 days;
(3d) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning where such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as is imposed on a payment to which Additional Amounts would have otherwise been payable an individual and is required to be made pursuant to the Savings Directive or any law implementing or complying with, or introduced in order to conform to, such Holder or beneficial ownerDirective;
(be) any where such taxes, duties, assessments or governmental charges in respect of such Note are estate, inheritance, gift, saleexcise, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(iif) where the relevant Note is surrendered for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant Note to another Paying Agent in a member state of the European Union. If the Company, or its successor, becomes subject at any time to any taxing jurisdiction other than the United Kingdom, references in this Section to the United Kingdom with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment Amounts shall be construed as references to the extent that United Kingdom and/or such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereofother successor jurisdiction.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Pearson PLC)
Payment of Additional Amounts. (a) All payments and deliveries made by If the Company or any successor to the Company under or with respect to this Indenture and the NotesSecurities of a particular series provide for payment of Additional Amounts, including, but not limited to, all payments of principal and interest (including the Fundamental Change Repurchase Pricepayments of discount and premium, if applicable, and any) in respect of the Redemption Price, if applicable), payments Securities of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, such series shall be made free and clear of, and without withholding or deduction for, for or on account ofaccount, of any present or future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within the United Kingdom or by or within any jurisdiction in which the Company political subdivision thereof or any successor authority therein or thereof having power to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"United Kingdom Taxes"), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the that event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each the Holder such additional amounts (“"Additional Amounts”") as may be necessary will result in the payment to ensure such Holder of the amount that would otherwise have been receivable by such Holder in the net amount received by the beneficial owner after absence of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts deduction, except that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or on account of:
(a) any taxto, dutyor to a Person on behalf of, assessment or other governmental charge that would not have been imposed but for:
(1) the existence a Holder who is liable for such United Kingdom Taxes in respect of any present or former connection between the relevant Holder or beneficial owner Securities, by reason of such Note and Holder having some connection with the Relevant Taxing JurisdictionUnited Kingdom (including being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in, the United Kingdom) other than merely the mere holding such Note of a Security or the receipt of principal and interest (including payments or the enforcement of rights thereunderdiscount and premium, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged if any) in a trade or business therein or having or having had a permanent establishment therein;respect thereof; or
(2b) the presentation of such Note to, or to a Person on behalf of, a Holder who presents a Security (in cases in which where presentation is required) for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note Holder would have been entitled to such Additional Amounts on presenting such Note Security for payment on any date during the last day of such 30-day period; or
(3) the failure period of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge30 days;
(c) any taxto, dutyor to a Person on behalf of, assessment or other governmental charge that a Holder who presents a Security (where presentation is payable otherwise than by withholding from payments under or with respect to required) in the NotesUnited Kingdom;
(d) any taxto, assessmentor to a Person on behalf of, a Holder who would not be liable or subject to the withholding or deduction required by FATCA, any current making a declaration of non-residence or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between similar claim for exemption to the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCArelevant tax authority; or
(e) any combination to, or to a Person on behalf of, a Holder of taxes, duties, assessments or other governmental charges referred a definitive Registered Security issued pursuant to the request of owners representing a majority in outstanding principal amount in the preceding clauses Book-Entry Interest following and during the continuance of an Event of Default if such Holder (a)or any predecessor Holder) was one of such owners requesting that definitive Registered Securities be so issued. Such Additional Amounts will also not be payable where, (b), (c) or (d); or
(ii) with respect to any payment of had the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in Security (or any interest therein) been the income under the laws Holder of the Relevant Taxing JurisdictionSecurity, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who he would not have been entitled to such payment of Additional Amounts had by reason of any one or more of clauses (a) through (e) above. If the Company shall determine that beneficiaryAdditional Amounts will not be payable because of the immediately preceding sentence, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make inform such Holder promptly after making such determination setting forth the reason(s) therefor. Reference to principal, interest, discount or premium in respect of the Securities shall be deemed also to refer to any required withholding Additional Amounts which may be payable as set forth in this Indenture or deduction of taxes and remit in the full amount deducted or withheld Securities. At least 10 Business Days prior to the relevant taxing jurisdiction 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 matters set forth in accordance with applicable law. The the below-mentioned Officers' Certificate) the Company will furnish to the trustee, within 30 days after Trustee and the date Paying Agents an Officers' Certificate instructing the payment Trustee and the Paying Agents whether payments of principal of or interest on the Securities due on such Interest Payment Date shall be without deduction or withholding for or on account of any taxes so deducted United Kingdom Taxes. If any such deduction or withholding shall be required, 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 is due pursuant to applicable law, either certified copies of tax receipts evidencing on such payment orto Holders and certifies that the Company shall pay such withholding or deduction. The Company covenants to indemnify the Trustee for, if such receipts are not obtainableand to hold the Trustee harmless against, other evidence any loss, liability or expense reasonably incurred without negligence, willful misconduct or bad faith on their part, arising out of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available in connection with actions taken or omitted by the Trustee in reliance on any Officers' Certificate furnished pursuant to this paragraph. Any Officers' Certificate required by this Section 1009 to be provided to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), Trustee and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Paying Agent shall be deemed to include any Additional Amounts, unless be duly provided if telecopied to the context requires otherwise, that are Trustee and such Paying Agent. The Company shall furnish to the Trustee the official receipts (or may a certified copy of the official receipts) evidencing payment of United Kingdom Taxes. Copies of such receipts shall be payable with respect made available to that amount under the obligations referred to in this Section 5.10Holders of the Securities upon request.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. Any and all payments to a Holder of principal (aand premium, if any) All payments and deliveries made by the Company or any successor to the Company under or with interest in respect to this Indenture and of the Notes, includingand any and all payments to indemnify a Holder for taxes or duties as a result of a substitution of the issuer, but not limited toas provided in Section 14.1(a)(ii), payments of principal (including the Fundamental Change Repurchase Price, if applicablewill be made free and clear of, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any and all present or and future withholding taxes, duties, assessments assessments, levies, imposts or governmental charges of whatever nature (“Taxes”) whatsoever imposed or levied by or within any jurisdiction in which on behalf of, the Company Cayman Islands, Brazil or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Japan or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company Guarantors, as the case may be, shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary to ensure that will result in the net amount received receipt by the beneficial owner after Holders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner had them if no such withholding or deduction had been required; provided , except that no such Additional Amounts shall be payable:
(i) for or on account of:
(a) payable in respect of any tax, duty, assessment or other governmental charge that would not have been imposed but forNote:
(1) the existence held by, or by a third party on behalf of, a Holder which is liable for such taxes, duties, assessments, levies, imposts or governmental charges in respect of any such Note by reason of its (or a fiduciary, settlor, member or shareholder, beneficiary of, or possessor of a power over, such Holder, if such Holder is an estate, trust, partnership or corporation) having some present or former connection between with the relevant Holder Cayman Islands, Brazil or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner Japan (including being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction the Cayman Islands, Brazil or treated as a resident thereof Japan or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;) other than the mere holding of such Note; or
(2) the presentation of such Note where (in cases in which presentation the case of a payment of principal, premium, if any, or interest on the Maturity Date or date of earlier redemption) the relevant Note is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts if it had surrendered the relevant Note on presenting the last day of such Note for payment on any date during such 30-day periodperiod of 30 days; or
(3) if such tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment, levy, impost or governmental charge; or
(4) if such amount is (a) payable other than by withholding from a payment on such Note, or (b) required to be withheld by a paying agent and such payment can be made without such withholding by any other paying agent; or
(5) if such tax, duty, assessment, levy, impost or governmental charge would not have been imposed but for the failure of the such Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide applicable certification, information, documents documentation or other evidence reporting requirements concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ or to make any declaration Japan of the Holder or satisfy any other reporting requirement relating to beneficial owner of such matters, Note if and to the extent that due and timely such compliance with such request is required by statute, regulation as a precondition to relief or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any exemption from withholding or deduction as to which Additional Amounts would have otherwise been payable to of all or part of such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding levy, impost or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)charge; or
(ii6) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, where such Note to withholding or deduction is imposed on a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be an individual and is required to be included made pursuant to Council Directive 200348/EC of 3 June 2003 on taxation of savings income in the income under form of interest payments or any European Union Directive otherwise implementing the laws conclusions of the Relevant Taxing JurisdictionECOFIN Council meeting of 26 and 27 November 2000 or any law implementing or complying with, for tax purposesor introduced in order to conform to, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.Directive; or
(b7) The Company will make any required withholding or deduction of taxes and remit in the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment case of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies combination of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notesitems (i) through (vi).
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Votorantim Cimentos S.A.)
Payment of Additional Amounts. (a) All payments and deliveries made by Unless otherwise provided in the Company Board Resolution or any successor supplemental indenture executed pursuant to Section 3.01 establishing the terms of a particular series of Securities, the Issuer will pay to the Company under or with respect to this Indenture Holder of any Security such additional amounts as may be necessary in order that every net payment of the principal of (and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Pricepremium, if applicableany, on) and interest, if any, and the Redemption PriceDeferred Interest, if applicable)any, payments of interest, including on any Additional Interest, and deliveries of ADSs (together with payments of cash such Security after deduction or other withholding for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, of any present or future taxestax, dutiesassessment, assessments duty or other governmental charges charge of whatever any nature imposed whatsoever imposed, levied or levied collected by or within any jurisdiction in which on behalf of the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (United Kingdom or any political subdivision or taxing authority thereof or therein) (eachtherein having power to tax, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having will not be less than the force of law. In the event that amount provided for in any such withholding or deduction is so requiredSecurity to be then due and payable; provided, however, that the Company or any successor foregoing obligation to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Additional Amounts shall be payable:
(i) for or will not apply on account of:
(a) of any tax, dutyassessment, assessment duty or other governmental charge that would not have been imposed but forwhich is payable:
(1) the existence otherwise than by deduction or withholding from payments of principal of (or premium, if any, on) or interest or Deferred Interest, if any, on any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;Security; or
(2) the presentation by reason of such Note Holder having, or having had, some personal or business connection with the United Kingdom and not merely by reason of the fact that payments are, or for the purposes of taxation are deemed to be, from sources in, or secured in the United Kingdom; or
(3) except in cases the case of the winding up of the Issuer in which presentation England, where the relevant Security is requiredpresented for payment in the United Kingdom; or
(4) where the relevant Security is presented for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date (as defined below) except to the extent that the holder or beneficial owner of such Note relevant Holder would have been entitled to such Additional Amounts additional amounts on presenting such Note the Security for payment on any date during such 30-day periodthirtieth day; or
(35) with respect to a payment to an individual, where the failure deduction or withholding is required to be made pursuant to any law implementing or complying with Directive 2003/48/EC of the Holder European Union or beneficial owner to comply with a timely request from any other directive on the Company taxation of savings implementing the conclusions of the meeting of the European Council of Economics and Finance Ministers of November 26-27, 2000 (or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement supplemental ECOFIN meeting relating to such matters, if directive) or any agreement between the European Union and any other jurisdiction providing for equivalent measures; or
(6) on a Security presented for payment by a Holder who would have been able to avoid such deduction or withholding by presenting the extent that due and timely compliance with such request is required by statute, regulation or administrative practice relevant Security to another paying agent in a Member State of the Relevant Taxing Jurisdiction to reduce European Union or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;elsewhere; or
(b7) by reason by any estate, excise, inheritance, gift, salesales, transfer, excise, wealth or personal property tax or any similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii8) as a result of the failure of a Holder to satisfy any statutory requirements or make a declaration of non-residence or other claim for exemption; or
(9) by reason of a change in law or official practice of any relevant taxing authority that becomes effective more than 30 days after the Relevant Date (as defined below) for payment of principal (or premium, if any) or interest or Deferred Interest, if any, in respect of such Security; or
(10) owing to any combination of clauses (1) through (9) above (provided that such provision is applicable to the relevant series of Securities in accordance with this Subordinated Indenture). No additional amounts will be paid as provided above with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), or premium, if any, and interest, including any Additional on) or interest or Deferred Interest, onif any, on any such Note Security to a Holder, if the any Holder who is a fiduciary, fiduciary or partnership or person other than the sole beneficial owner of that any such payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the such fiduciary, a member of that such a partnership or a the beneficial owner who of such payment would not have been entitled to the additional amounts had such Additional Amounts had that beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make of any required withholding or deduction of taxes and remit such Security. For the full amount deducted or withheld to purposes hereof the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after “Relevant Date” means the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or on which the payment of principal of (including the Fundamental Change Repurchase Priceor premium, if applicableany, and the Redemption Priceon) or interest or Deferred Interest, if applicable)any, on any Security first becomes due and payable but, if the full amount of the monies payable on such date has not been received by the relevant Paying Agent or as it shall have directed on or prior to such date, the “Relevant Date” means the date on which such monies shall have been so received. Whenever in this Subordinated Indenture there is mentioned, in any premium context, the payment of the principal of (or interestpremium, including any Additional Interestif any, on) or interest or Deferred Interest (or, any Note or any other amount payable with respect to the Perpetual Subordinated Capital Securities, any other payments), if any, on any Security, such Note, mention shall be deemed to include any Additional Amountsmention of the payment of additional amounts provided for in the terms of such Securities and this Section to the extent that, unless the context requires otherwisein such context, that are additional amounts are, were or may would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of additional amounts as contemplated by Section 3.01(22), at least 10 days prior to the first Interest Payment Date with respect to that amount under series of Securities (or if the obligations Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal (and premium, if any) and interest and Deferred Interest, if any, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer will furnish the Subordinated Trustee for that series of Securities with an Officers’ Certificate instructing such Subordinated Trustee whether such payment of principal of (and premium, if any, on) and interest and Deferred Interest, if any, on the Securities of that series shall be made to Holders of Securities of that series without withholding for or on account of any tax, assessment, duty or other governmental charge as referred to above or described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Issuer will pay to the Subordinated Trustee for such series of Securities such additional amounts as may be required pursuant to the terms applicable to such series. The Issuer covenants to indemnify the Subordinated Trustee for such series of Securities and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without gross negligence, willful default or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 5.10.
(e) 10.07 or the failure to provide any such Officers’ Certificate. The foregoing obligations contained in the immediately preceding sentence of the Issuer shall survive termination or payment of all of the Securities, the satisfaction and discharge of this Subordinated Indenture, and the resignation or removal of the Subordinated Trustee or any Paying Agent for such series of Securities. The Issuer hereby undertakes that, if any withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to the proposal agreed by the European Council of the Economic and Finance Ministers (“ECOFIN”) on January 21, 2003 or any law implementing or complying with, or introduced in order to conform to, any such Directive, it will ensure that it maintains a paying agent with a specific office in a European Union member state that will not be obliged to withhold or deduct tax pursuant to any European Union Directive on the taxation of savings income implementing those proposals or any such law; provided, that under no circumstances shall the Issuer be obliged to maintain a paying agent with a specified office in such member state unless at least one member state of the European Union does not require a paying agent making payments through a specified office in that member state to so withhold or deduct tax.
Appears in 1 contract
Payment of Additional Amounts. (a) All Any and all payments and deliveries made by the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments a Noteholder of principal (including the Fundamental Change Repurchase Priceand premium, if applicableany) and interest in respect of the Notes will be made free and clear of, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, or on account of, any and all present or and future withholding taxes, duties, assessments assessments, levies, imposts or governmental charges of whatever nature ("Taxes") whatsoever imposed or levied by or within any jurisdiction in which on behalf of, the Company Cayman Islands or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (Brazil or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is Taxes are required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company Guarantors, as the case may be, shall pay to each Holder such additional amounts (“the "Additional Amounts”") as may be necessary to ensure that will result in the net amount received receipt by the beneficial owner after Noteholders of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner had them if no such withholding or deduction had been required; provided , except that no such Additional Amounts shall be payable:
(i) for or on account ofpayable in respect of any Note:
(a) any taxheld by, dutyor by a third party on behalf of, assessment a Noteholder which is liable for such Taxes in respect of such Note by reason of its (or other governmental charge that would not have been imposed but for:
(1a fiduciary, settlor, member or shareholder, beneficiary of, or possessor of a power over, such Noteholder, if such Noteholder is an estate, trust, partnership or corporation) the existence of any having some present or former connection between with the relevant Holder Cayman Islands or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner Brazil (including being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction the Cayman Islands or treated as a resident thereof Brazil or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;) other than the mere holding of such Note; or
(2b) where (in the case of a payment of principal, premium, if any, or interest on the Maturity Date or date of earlier redemption) the presentation of such relevant Note (in cases in which presentation is required) surrendered for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date except to the extent that the holder or beneficial owner of such Note relevant Noteholder would have been entitled to such Additional Amounts if it had surrendered the relevant Note on presenting the last day of such Note for payment on any date during such 30-day periodperiod of 30 days; or
(3c) if such tax is an estate, inheritance, gift, sales, transfer or personal property tax or any similar tax, assessment, levy, impost or governmental charge; or
(d) if such amount is payable other than by withholding from a payment on such Note or such amount is required to be withheld by a Paying Agent, if such payment can be made without such withholding by any other Paying Agent; or
(e) if such Taxes would not have been imposed but for the failure of the Holder or beneficial owner such Noteholder to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide applicable certification, information, documents documentation or other evidence reporting requirements concerning such Holder’s or beneficial owner’s the nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, Cayman Islands or to make any declaration or satisfy any other reporting requirement relating to Brazil of the Noteholder if such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation as a precondition to relief or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any exemption from withholding or deduction as to which Additional Amounts would have otherwise been payable to of all or part of such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)Taxes; or
(iif) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, where such Note to withholding or deduction is imposed on a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be an individual and is required to be included made pursuant to Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the income under form of interest payments or any European Union Directive otherwise implementing the laws conclusions of the Relevant Taxing JurisdictionECOFIN Council meeting of 26 and 27 November 2000 or any law implementing or complying with, for tax purposesor introduced in order to conform to, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to any such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.Directive; or
(bg) The Company will make any required withholding or deduction of taxes and remit in the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment case of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies combination of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the NotesClauses (a) through (f) above.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) All payments and deliveries made The Issuer will pay as additional interest, in respect of any payment of principal of or interest on any Note to a registered holder or beneficial owner thereof that, in the case of payment by the Company Issuer, is not a resident of the jurisdiction of incorporation or residence for tax purposes of the Issuer or any successor to the Company under or with respect to this Indenture and the Notesentity, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made 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 or within any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) therein (each, as applicable, a the “Relevant Taxing Issuer Jurisdiction”)) for purposes of taxation, unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so required, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure so that the net amount received by the such registered holder or beneficial owner of a Note, after 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 for the account of or as a result of such withholding or deduction (and after deducting any taxes on payment by the Additional Amounts) shall equal Issuer Jurisdiction will not be less than the amounts that amount such holder would have received if such Taxes had not been received by such beneficial owner had no such withholding withheld or deduction been requireddeducted; provided provided, however, that no the Issuer shall not be required to pay any Additional Amounts shall be payable:
(i) for or on account of:
(ai) any tax, duty, assessment Any present or other governmental charge future Tax that would not have been imposed so imposed, assessed, levied or collected but for:
for the fact that the registered holder of a Note (1) the existence or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of any present or former connection between the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitationa power over, such Holder holder, if such holder is an estate, trust, partnership or beneficial owner being corporation) is or has been a domiciliary, national or resident of, or engaging or having been engaged in a national, domiciliary trade or resident of such Relevant Taxing Jurisdiction business or treated as maintaining or having maintained a resident thereof permanent establishment or being or having been physically present in the Issuer Jurisdiction or engaged in a trade or business therein or otherwise having or having had some connection with the Issuer Jurisdiction other than the mere holding or ownership of, or the collection of principal of, and interest on, a permanent establishment thereinNote;
(2ii) Any present or future Tax that would not have been so imposed, assessed, levied or collected but for the presentation of such Note (in cases in which fact that, where presentation is required) required in order to receive payment, a Note was presented more than 30 days after the later of the date on which the such payment became due and payable pursuant to the terms thereof or was made or duly provided for, except whichever is later;
(iii) Any estate, inheritance, gift, transfer, personal property or similar Tax;
(iv) Any present or future Tax that is payable otherwise than by deduction or withholding from payments on or in respect of a Note;
(v) Any present or future Tax that would not have been so imposed, assessed, levied or collected but for the failure by the registered holder or the beneficial owner of a Note to comply, following a written request addressed to the extent that registered holders, with any certification, identification or other reporting requirements concerning the nationality, residence or identity of such registered holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or its connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, Issuer Jurisdiction if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Issuer Jurisdiction as a condition to reduce relief or eliminate any exemption from such Tax;
(vi) Any withholding or deduction as imposed on a payment to an individual that is required to be made pursuant to the European Union Directive on the taxation of savings which Additional Amounts would have otherwise been payable was adopted on June 3, 2003 and which implements the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000, or any law implementing or complying with, or introduced in order to conform to, such Holder or beneficial ownerDirective;
(bvii) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, Any withholding or deduction required that is imposed on any Note that is presented for payment, where presentation is required, by FATCA, any current or future Treasury Regulations on behalf of a registered holder who would have been able to avoid such withholding or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction deduction by presenting such Note to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d)another paying agent; or
(iiviii) with Any combination of Taxes described in (i) through (vii) above; nor will Additional Amounts be paid in respect of any payment in respect of the Notes to any payment registered holder or beneficial owner of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder Notes that is a fiduciary, fiduciary or partnership or person any Person other than the sole beneficial owner of that such payment to the extent that such payment would be required by the laws of the Issuer Jurisdiction to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, purposes of a beneficiary or settlor with respect to the fiduciary, such fiduciary or a member of that such partnership or a beneficial owner who that would not have been entitled to such Additional Amounts amounts had that such beneficiary, settlor, partner member or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction registered holder of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Fiscal and Paying Agency Agreement (Brandbev S.a r.l.)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to in respect of the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall Notes will be made without withholding or deduction for, for or on account of, any present or future taxes, duties, assessments assessments, fees or other governmental charges of whatever nature (and any fines, penalties or interest related thereto) imposed or levied by or within on behalf of Peru or any political subdivision or authority of or in Peru having power to tax, or any other jurisdiction in which the Company (or any successor to the Company is, its successor) is then organized or resident for tax purposes, organized or otherwise resident or from or through which payment is made (purposes or any political subdivision or taxing authority thereof or therein) therein (each, as applicable, a “Relevant Taxing JurisdictionTaxes”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company shall pay to each Holder such additional amounts (the “Additional Amounts”) as may be necessary to ensure in order that the every net amount received payment made by the beneficial owner Company on each Note after deduction or withholding for or on account of any Relevant Taxes will not be less than the amount then due and payable on such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received by such beneficial owner had no such withholding or deduction been required; provided that no Note. The foregoing obligation to pay Additional Amounts shall be payablewill not apply to or in respect of:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
(1) for the existence of any present or former connection between the relevant a Holder (or beneficial owner between a fiduciary, settlor, beneficiary, member or shareholder of such Note Holder, if such Holder is an estate, a trust, a partnership or a corporation), on the one hand, and Peru, on the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, hand (including, without limitation, such Holder (or beneficial owner such fiduciary, settlor, beneficiary, member or shareholder) being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or present therein or having having, or having had had, a permanent establishment therein), other than the mere receipt of such payment or the ownership or holding of a Note;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(cii) any tax, duty, assessment or other governmental charge which would not have been imposed but for the presentation by a 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 duly provided for, whichever occurs later;
(iii) any tax, duty, assessment or other governmental charge to the extent that such tax, duty, assessment or other governmental charge would not have been imposed but for the failure of a Holder or beneficial owner to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Peru of such Holder if (a) such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge and (b) at least 30 days prior to the date on which the Company will apply this clause (iii), the Company will have notified all Holders of Notes that some or all Holders of Notes will be required to comply with such requirement;
(iv) any estate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(v) any withholding or deduction imposed on a payment to an individual and that is required to be made pursuant to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings;
(vi) any tax, duty, assessment or other governmental charge which would have been avoided by such Holder presenting the relevant Note (if presentation is required) or requesting that such payment be made to another paying agent in a member state of the European Union;
(vii) any tax, duty, assessment or other governmental charge which is payable otherwise other than by deduction or withholding from payments under of principal of, premium, if any, or interest on a Note; or
(viii) any combination of the above.
(b) No Additional Amounts will be paid with respect to a payment on any Note to a Holder that is a fiduciary or partnership or other than the Notes;sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or beneficial owner would not have been entitled to receive payment of the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, other reasonable documentation) evidencing any payment of Relevant Taxes in respect of which the Company has paid any Additional Amounts. Copies of such documentation will be made available to the Holders of the Notes or the paying agents, as applicable, upon request therefor.
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted All references in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction this Indenture to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable)of, premium, if any, and interest, including interest on the Notes will include any Additional Interest, onAmounts payable by the Company in respect of such principal, such Note to a Holderpremium, if the Holder is a fiduciaryany, partnership or person other than the sole beneficial owner of that payment to the extent that and such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawinterest. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will shall also pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, taxes or any other excise or property taxes, charges or similar levies (including, which arise in each case, interest and penalties) payable in respect of any jurisdiction from the creation, issue, offering, execution, delivery, registration, enforcement registration or the making of payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside of Peru other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after following the occurrence and during the continuance of a default with respect to the Notesany Default or Event of Default.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (VM Holding S.A.)
Payment of Additional Amounts. (a) All payments and deliveries made by the The Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, will make all payments of principal or interest (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Pricetogether with any Arrears of Interest, if applicable), payments of interest, and any other amounts otherwise due and payable under the Notes (including any Additional InterestAmounts) by or on behalf of the Company, free and clear of, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall be made without withholding or deduction for, for or on account of, any and all present or and future taxes, duties, assessments or governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within any jurisdiction in which the Company United Kingdom or any successor authority therein or thereof having power to tax (the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding or deduction is so requiredevent, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure that the net amount received shall result in receipt by the beneficial owner after Holders of Notes of such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that as would have been received by such beneficial owner them had no such withholding or deduction been required; provided required by law to be made, except that no such Additional Amounts shall be payablepayable with respect to any Note:
(i) if it is presented for payment by, or on account behalf of:
(a) any tax, dutya holder or beneficial owner who is liable for such taxes, assessment duties, assessments or other governmental charge that would not have been imposed but for:
(1) the existence charges in respect of any present such Note by reason of his having some current or former connection between with the relevant United Kingdom other than the mere holding (as Holder or beneficial owner owner) of such Note and the Relevant Taxing JurisdictionNote;
(ii) if it is presented for payment by, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunderon behalf of, including, without limitation, such Holder a holder or beneficial owner being who could lawfully avoid (but has not so avoided) such deduction or having been withholding by complying or procuring that any third party complies with any statutory requirements that are a nationalprecondition for an exemption from, domiciliary or resident a reduction in, the relevant taxes, duties, assessments or governmental charges or by making or procuring that any third party makes a declaration of such Relevant Taxing Jurisdiction non-residence or treated as a resident thereof or being or having been physically present or engaged other similar claim for exemption to any tax authority in a trade or business therein or having or having had a permanent establishment thereinthe place where the relevant Note is presented for payment;
(2iii) if it is presented (or in respect of which the presentation of such Note (in cases in which presentation certificate representing it is requiredpresented) for payment more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, Relevant Date (as defined in Section 2.14(b) below) except to the extent that the holder or beneficial owner Holder of such Note it would have been entitled to such Additional Amounts on presenting such Note it for payment on the thirtieth day;
(iv) in respect of any date during such 30-day periodtaxes, duties, assessments or governmental charges required to be withheld or deducted under sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (or any Treasury Regulations or other administrative guidance thereunder); or
(3v) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC or any law implementing or complying with, or introduced in order to conform to, such directive or any agreement between the European Union and any jurisdiction providing for equivalent measures.
(b) As used in this Section 2.14, “Relevant Date” in respect of any Note means the date on which payment in respect of it first becomes due or (if any amount of the money payable is improperly withheld or refused) the failure date on which payment in full of the Holder amount outstanding is made or beneficial owner (if earlier) the date seven days after that on which notice is duly given to comply with a timely request from the Company or any successor Holders of Notes that, upon further presentation of the CompanyNote being made in accordance with the terms of the Notes, addressed such payment will be made, provided that payment is in fact made upon such presentation.
(c) In the Indenture, any reference to the Holder principal or beneficial ownerinterest being payable shall be deemed to include Additional Amounts payable with respect to principal or interest, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable law. The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will pay any stamp, issue, registration, court, documentary or value added taxes, or any other excise or property taxes, charges or similar levies (including, in each case, interest and penalties) payable in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, shall be deemed to include any Additional Amounts, unless the context requires otherwise, that are or may be payable with respect to that amount under the obligations referred to circumstances set forth in this Section 5.102.14, whether or not so stated.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) 10.7.1 All payments and deliveries made by in respect of the Company or any successor to the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made without withholding or deduction for, for or on account of, of any present or future taxes, duties, assessments or other governmental charges of whatever nature imposed imposed, levied, collected, withheld or levied assessed by or within on behalf of Brazil (“Brazilian Taxes”), the Netherlands (“Dutch Taxes”) or any other jurisdiction or political subdivision thereof having power to tax in which the Company or any successor to the Company is, thereto is organized or incorporated or is a resident for tax purposes, organized or otherwise resident or from or through which payment is made purposes (or any political subdivision or taxing authority thereof or therein) (each“Foreign Taxes”), as applicableapplicable (each such jurisdiction, a “Relevant Taxing Jurisdiction”), unless such withholding or deduction the Company is required compelled by law to deduct or by regulation withhold such taxes, duties, assessments or governmental policy having the force of lawcharges. In the event that of any such withholding or deduction is so requireddeduction, the Company shall make such deduction or any successor withholding, will make payment of the amount so withheld to the Company shall appropriate governmental authority and will pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the every net amount received payment made by the beneficial owner Company on the Securities after such withholding or deduction (and after deducting for or on account of any taxes on the Additional Amounts) shall Brazilian Taxes, Dutch Taxes or Foreign Taxes will equal the respective amounts that of principal, premium, if any, and interest which would have been received by receivable in respect of such beneficial owner Securities had no such withholding or deduction (including for any Foreign Taxes payable in respect of Additional Amounts) been required; provided , except that no such Additional Amounts shall be payablepayable with respect to any payment on a Security:
(i) to, or to a third party on behalf of, a Holder who is liable for any such taxes, duties, assessments or other governmental charges in respect of such Security by reason of (a) a connection between the Holder and a Relevant Taxing Jurisdiction other than the mere holding of such Security and the receipt of payments with respect to such Security or (b) failure by the Holder to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Relevant Taxing Jurisdiction, of such Holder, if such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge and the Company or the Guarantor, as applicable, has given the Holders at least 30 days’ notice that Holders will be required to comply with such requirement;
(ii) in respect of any such taxes, duties, assessments or other governmental charges with respect to a Security surrendered (if surrender is required) more than 30 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 thereof given to Holders, whichever occurs later, except to the extent that the Holder of such Security would have been entitled to such Additional Amounts on surrender of such Security for payment on the last day of such 30-day period;
(iii) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of savings 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 directive;
(iv) in respect of any estate, inheritance, gift, sales, transfer, personal property or similar tax, assessment or governmental charge imposed with respect to a Security;
(v) in respect of any tax, assessment or other governmental charge payable otherwise than by deduction or withholding from payments of principal of or interest or premium, if any, on any series of Securities or by direct payment by the Company or the Guarantor in respect of claims made against the Company or the Guarantor; or
(vi) in respect of any combination of the above. For purposes of the provisions described in this Section 10.7.1, the term “Holder” of any Security means the direct nominee of any beneficial owner of such Security, which holds such beneficial owner’s interest in such Security. Notwithstanding the foregoing, the limitations on the Company’s or the Guarantor’s obligation to pay Additional Amounts set forth in clause (i)(b) above shall not apply if the provision of information, documentation or other evidence described in such clause (i)(b) would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking into account any relevant differences between U.S. and Dutch or Brazilian law, regulation or administrative practice) than comparable information or other reporting requirements imposed under U.S. tax law (including tax treaties between the United States and the Netherlands or Brazil), regulations (including proposed regulations) and administrative practice. The Company or the Guarantor, as the case may be, shall promptly provide the Trustee with documentation, if any, (which may consist of certified copies of such documentation) reasonably satisfactory to the Trustee evidencing the payment of Foreign Taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agent, as applicable, upon request therefor. In respect of the Securities issued hereunder, at least 10 days prior to the first date of payment of interest on the Securities and at least 10 days prior to each date, if any, of payment of principal or interest thereafter if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Company and the Guarantor shall furnish the Trustee and each Paying Agent with an Officers’ Certificate instructing the Trustee and such Paying Agent as to whether such payment of principal of or interest or premium, if any, on such Securities shall be made without deduction or withholding for or on account of:
(a) of any tax, duty, assessment or other governmental charge that would not have been imposed but for:
(1) charge. If any such deduction or withholding shall be required by the existence of Netherlands or Brazil or any present Successor Jurisdiction or former connection between any political subdivision or authority therein or thereof having power to tax, then such certificate shall specify, by country, the relevant Holder amount, if any, required to be deducted or beneficial owner withheld on such payment to Holders of such Note Securities, and the Relevant Taxing Jurisdiction, other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial ownerGuarantor, as the case may be, (if payment is then due under the Guarantees) shall pay or cause to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and be paid to the extent that due and timely compliance with Trustee or such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Paying Agent Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or with respect to the Notes;
(d) any tax, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premiumAmounts, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes and remit the full amount deducted or withheld to the relevant taxing jurisdiction in accordance with applicable lawby this Section 10.7. The Company will furnish and the Guarantor agree to indemnify the trusteeTrustee and each Paying Agent for, within 30 days after the date the payment and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by them in reliance on any taxes so deducted or withheld is due Officers’ Certificate furnished pursuant to applicable lawthis Section 10.7, either certified copies the obligation of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory the Company and the Guarantor to so indemnify being joint and several.
10.7.2 The Company or the Trustee. Upon request, copies of those receipts or other evidence of paymentsGuarantor, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will shall pay any all present and future stamp, issue, registration, court, documentary or value added taxesother similar duties, if any, which may be imposed by the Netherlands or Brazil or any other governmental entity or political subdivision therein or thereof, or any taxing authority of or in any of the foregoing, with respect to the Indenture or the issuance of the Securities or the Guarantees.
10.7.3 The Company or the Guarantor, as the case may be, shall provide each Paying Agent and any withholding agent under relevant tax regulations with copies of each certificate received by the Company or the Guarantor from a Holder of a Security pursuant to the text of such Security. Each such Paying Agent and withholding agent shall retain each such certificate received by it for as long as any Security is outstanding and in no event for less than four years after its receipt, and for such additional period thereafter, as set forth in an Officers’ Certificate, as such certificate may become material in the administration of applicable tax laws.
10.7.4 In the event that Additional Amounts actually paid with respect to the Securities pursuant to the preceding paragraphs are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Securities, and, as a result thereof, such Holder is entitled to make claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Securities, 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 Company or the Guarantor. However, by making such assignment, the Holder makes no representation or warranty that the Company or the Guarantor will be entitled to receive such claim for a refund or credit and incurs no other excise obligation with respect thereto.
10.7.5 All references in this Indenture and the Securities to principal, premium, if any, or property taxesinterest in respect of any Security shall be deemed to mean and include all Additional Amounts, charges or similar levies (includingif any, in each case, interest and penalties) payable in respect of such principal, premium, if any, or interest, unless the creationcontext otherwise requires, issue, offering, execution, delivery, registration, enforcement or making payments and express mention of the payment of Additional Amounts in any provision hereof shall not be construed as excluding reference to Additional Amounts in those provisions hereof where such express mention is not made. All references in this Indenture and the Securities to principal in respect of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference in this Indenture or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or the payment of principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note or any other amount payable with respect to such Note, Security shall be deemed to mean and include any Additional Amounts, unless Redemption Price or Repurchase Price payable in respect of such Security pursuant to any redemption or repurchase right hereunder (and all such references to the context requires otherwise, that are Stated Maturity of the principal in respect of any Security shall be deemed to mean and include the Redemption Date or may be payable Repurchase Date with respect to that any such Redemption Price or Repurchase Price), and all such references to principal, premium, if any, interest or Additional Amounts shall be deemed to mean and include any amount under payable in respect hereof pursuant to Section 10.7, and express mention of the obligations referred payment of any Redemption Price or Repurchase Price, or any such other amount in any provision hereof shall not be construed as excluding reference to the payment of any Redemption Price or Repurchase Price, or any such other amounts in this Section 5.10those provisions hereof where such express reference is not made.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Payment of Additional Amounts. (a) 10.8.1 All payments and deliveries made by the Company or any successor to in respect of the Company under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, Securities shall be made free and clear of, and without withholding or deduction for, for or on account of, any present or future taxes, duties, assessments assessments, fees or other governmental charges of whatever nature (and any fines, penalties or interest related thereto) imposed or levied by or within on behalf of Brazil or any political subdivision or authority of or in Brazil having power to tax or of or in any other jurisdiction in which the Company is organized or is otherwise resident for tax purposes or any successor to the Company is, for tax purposes, organized or otherwise resident or jurisdiction from or through which payment is made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, of the aforementioned being a “Relevant Taxing Jurisdiction”), ) unless such withholding or deduction is required by law or by regulation or governmental policy having the force of law. In the event that any such withholding taxes, duties, assessments, fees or deduction is other governmental charges (and any fines, penalties or interest related thereto) are so requiredimposed or levied, the Company or any successor to the Company shall pay to each Holder such additional amounts (“Additional Amounts”) as may be necessary to ensure in order that the every net amount received payment made by the beneficial owner Company on each Security after such deduction or withholding imposed upon or deduction (as a result of such payment by a Taxing Jurisdiction shall not be less than the amount then due and after deducting any taxes payable on the such Security. The foregoing obligation to pay Additional Amounts) , however, shall equal the amounts that would have been received by such beneficial owner had no such withholding not apply to or deduction been required; provided that no Additional Amounts shall be payablein respect of:
(i) for or on account of:
(a) any tax, duty, assessment or other governmental charge that which would not have been imposed but for:
(1) for the existence of any present or former connection between such Holder, on the one hand, and the relevant Holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, on the other than merely holding such Note or the receipt of payments or the enforcement of rights thereunder, hand (including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary citizen or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business or present therein or having having, or having had had, a permanent establishment therein), other than the mere receipt of such payment or the ownership or holding of or the enforcement of rights under such Security;
(2) the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of the date on which the payment became due and payable pursuant to the terms thereof or was made or duly provided for, except to the extent that the holder or beneficial owner 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
(3) the failure of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(cii) any tax, duty, assessment or other governmental charge that which would not have been so imposed but for the presentation by such 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 payments under or with respect to the Notesduly provided for, whichever occurs later;
(diii) any tax, assessmentduty, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments assessment or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if the Holder is a fiduciary, partnership or person other than the sole beneficial owner of that payment charge to the extent that such payment would be required to be included in the income under the laws of the Relevant Taxing Jurisdictiontax, for tax purposesduty, of a beneficiary assessment or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who other governmental charge would not have been entitled imposed but for the failure of such Holder to such Additional Amounts had that beneficiarycomply with any certification, settloridentification or other reporting requirements concerning the nationality, partner residence, identity or beneficial owner been connection with the relevant Taxing Jurisdiction of the Holder thereof.if (A) such compliance is required or imposed by law as a precondition to exemption from all or a part of such tax, duty, assessment or other governmental charge and (B) at least 30 days prior to the date on which the Company shall apply this clause (iii), the Company shall have notified all Holders of Securities that some or all Holders of Securities shall be required to comply with such requirement;
(biv) The Company will make any required estate, inheritance, gift, sales, transfer, excise or personal property or similar tax, assessment or governmental charge;
(v) any tax, assessment or other governmental charge which is payable other than by deduction or withholding from payments of principal of or interest on the Security;
(vi) where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to any European Union Directive on the taxation of taxes and remit savings implementing the full amount deducted conclusions of the ECOFIN Council meeting of November 26-27, 2000 or withheld any law implementing or complying with, or introduced in order to conform to, such directive; or
(vii) any combination of the relevant taxing jurisdiction in accordance with applicable law. above.
10.8.2 The Company will furnish to the trustee, within 30 days after the date the payment of any taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment or, if such receipts are not obtainable, other evidence of payments reasonably satisfactory to the Trustee. Upon request, copies of those receipts or other evidence of payments, as the case may be, will be made available by the Trustee to the Holders or beneficial owners of the Notes.
(c) the Company will shall also pay any present or future stamp, issue, registration, court, court or documentary or value added taxes, taxes or any other excise or property taxes, charges or similar levies (includingwhich arise in any jurisdiction from execution, in each casedelivery, interest and penalties) payable registration or making of payments or enforcement in respect of the creation, issue, offering, execution, delivery, registration, enforcement or making payments in respect of the Notes, or any documentation with respect theretoSecurities, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside Brazil other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after Securities following the occurrence of any Default or Event of Default.
10.8.3 No Additional Amounts shall be paid with respect to a payment on any Security to a Holder that is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or beneficial owner would not have been entitled to receive payment of the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Security.
10.8.4 The Company shall provide the Trustee with the official acknowledgment of the relevant taxing authority (or, if such acknowledgement is not available without unreasonable burden or expense, a certified copy thereof or, if such certified copy is not available, other documentation satisfactory to the Trustee) evidencing any payment of taxes, penalties, duties, assessments, fees or other governmental charges in respect of which the Company has paid any Additional Amounts. Copies of such documentation shall be made available to the Holders of the Securities or the Paying Agents, as applicable, upon request therefor.
10.8.5 The Company shall:
(i) at least 10 Business Days prior to the first Payment Date (and during the continuance at least 10 Business Days prior to each succeeding Payment Date or any Redemption Date or date of a default Maturity if there has been any change with respect to the Notes.
matters set forth in the below-mentioned Officers’ Certificate), deliver to the Trustee and each Paying Agent an Officers’ Certificate (dA) Any reference specifying the amount, if any, of taxes described in this Indenture Section 10.8 (the “Relevant Withholding Taxes”) required to be deducted or the Notes in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or withheld on the payment of principal of (including or interest on the Fundamental Change Repurchase PriceSecurities to Holders and the Additional Amounts, if applicableany, due to Holders in connection with such payment, and (B) certifying that the Company shall pay such deduction or withholding;
(ii) prior to the due date for the payment thereof, pay any such Relevant Withholding Taxes, together with any penalties or interest applicable thereto;
(iii) within 15 days after paying such Relevant Withholding Taxes, deliver to the Trustee and each Paying Agent evidence of such payment and of the remittance thereof to the relevant taxing or other authority as described in this Section 10.8; and
(iv) pay any Additional Amounts due to Holders on any Interest Payment Date, Redemption Price, if applicable)Date or date of Maturity to the Trustee in accordance with the provisions of this Section 10.8 and Section 10.4.
10.8.6 The Company shall indemnify the Trustee and each Paying Agent for, and any premium or interest, including any Additional Interest, onhold each harmless against, any Note loss, liability or expense reasonably incurred without gross negligence, bad faith or willful misconduct on such Person’s part, arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section 10.8 or the failure of the Trustee or any Paying Agent for any reason (other amount payable with than its own gross negligence, bad faith or willful misconduct) to receive on a timely basis any such Officers’ Certificate or any information or documentation requested by it or otherwise required by applicable law or regulations to be obtained, furnished or filed in respect of such Relevant Withholding Taxes. The Company shall make available to such Noteany Holder requesting the same, evidence that the applicable Relevant Withholding Taxes have been paid.
10.8.7 Any Officers’ Certificate required by this Section 10.8 to be provided to the Trustee and each Paying Agent shall be deemed to include any Additional Amounts, unless be duly provided if sent by facsimile to the context requires otherwise, that are or may be payable with respect to that amount Trustee and each Paying Agent.
10.8.8 The obligations described under the obligations referred to in this Section 5.104.8 will apply mutatis mutandis to any jurisdiction in which any successor Person to the Company is organized or any political subdivision or taxing authority or agency thereof or therein.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.
Appears in 1 contract
Sources: Indenture (Gerdau Trade II Inc.)
Payment of Additional Amounts. (a) All payments and deliveries made by the Company or any successor to the Company ----------------------------- Issuer under or with respect to this Indenture and the Notes, including, but not limited to, payments of principal (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), payments of interest, including any Additional Interest, and deliveries of ADSs (together with payments of cash for any fractional ADSs, if applicable) upon conversion, shall a Note or Notes will be made free and clear of and without withholding or deduction for, for or on account of, of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed or levied by or within on behalf of any jurisdiction in which the Company or any successor to the Company is, for tax purposes, organized or otherwise resident or from or through which payment is made Taxing Authority (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “Relevant Taxing Jurisdiction”"Taxes"), unless such withholding or deduction the Issuer, is required to withhold or deduct Taxes by law or by regulation the interpretation or governmental policy having the force of lawadministration thereof. In the event that the Issuer is required to so withhold or deduct any such withholding amount for or deduction is so requiredon account of any Taxes from any payment made under or with respect to a Note or Notes, the Company or any successor to the Company shall Issuer will pay to each Holder such additional amounts (“"Additional Amounts”") as may be necessary to ensure so that the net amount received by the beneficial owner Holder (including Additional Amounts) after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall will equal the amounts amount that the Holder would have received if such Taxes had not been received by such beneficial owner had no such withholding required to be withheld or deduction been requireddeducted; provided that no Additional Amounts shall will be payable:
(i) for or on account ofpayable with respect to a payment made the Holder to the extent:
(a) that any tax, duty, assessment or other governmental charge that such Taxes would not have been so imposed but for:
(1) for the existence of any present or former connection between the relevant Holder and the Taxing Authority imposing such Taxes (other than the mere receipt of such payment, acquisition, ownership or beneficial owner disposition of such Note and or Notes or the Relevant Taxing Jurisdiction, other than merely holding exercise or enforcement of rights under such Note or the receipt of payments Notes or the enforcement of rights thereunder, including, without limitation, such Holder or beneficial owner being or having been a national, domiciliary or resident of such Relevant Taxing Jurisdiction or treated as a resident thereof or being or having been physically present or engaged in a trade or business therein or having or having had a permanent establishment thereinthis Master Loan Agreement);
(2b) of any estate, inheritance, gift, sales, transfer, or personal property Tax imposed with respect to such Notes, except as otherwise provided herein;
(c) that any such Taxes would not have been so imposed but for the presentation of such Note Notes (in cases in which where presentation is required) for payment on a date more than 30 days after the later of the date on which the such payment became due and payable pursuant to or the terms date on which payment thereof or was made or is duly provided for, whichever is later, except to the extent that the holder or beneficial owner of such Note Holder thereof would have been entitled to such Additional Amounts on presenting such Note had the Notes been presented for payment on any date during such 30-day period; or
(3d) that the Holder would not be liable or subject to such withholding or deduction of Taxes but for the failure to make a valid declaration of non-residence or other similar claim for exemption, if (x) the failure making of the Holder or beneficial owner to comply with a timely request from the Company or any successor of the Company, addressed to the Holder or beneficial owner, as the case may be, to provide certification, information, documents or other evidence concerning such Holder’s or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely compliance with such request claim is required or imposed by statute, regulation treaty, regulation, ruling or administrative practice of the Relevant relevant Taxing Jurisdiction Authority as a precondition to reduce an exemption from, or eliminate any withholding or deduction as reduction in, the relevant Taxes, and (y) at least 60 days prior to which Additional Amounts would have otherwise been payable to such Holder or beneficial owner;
(b) any estate, inheritance, gift, sale, transfer, excise, personal property or similar tax, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments under or the first payment date with respect to the Notes;
which this clause (d) any taxshall apply, assessment, withholding or deduction required by FATCA, any current or future Treasury Regulations or rulings promulgated thereunder, any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to give effect to such agreement, or any agreement with the U.S. Internal Revenue Service under FATCA
(e) any combination of taxes, duties, assessments or other governmental charges referred to in the preceding clauses (a), (b), (c) or (d); or
(ii) with respect to any payment of the principal of (including the Fundamental Change Repurchase Price, if applicable, and the Redemption Price, if applicable), premium, if any, and interest, including any Additional Interest, on, such Note to a Holder, if Issuer shall have notified the Holder is a fiduciary, partnership or person other than in writing that the sole beneficial owner of that payment to the extent that such payment would Holder shall be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for tax purposes, of a beneficiary provide such declaration or settlor with respect to the fiduciary, a member of that partnership or a beneficial owner who would not have been entitled to claim. The Issuer will also (i) make such Additional Amounts had that beneficiary, settlor, partner or beneficial owner been the Holder thereof.
(b) The Company will make any required withholding or deduction of taxes Taxes and (ii) remit the full amount of Taxes so deducted or withheld to the relevant taxing jurisdiction Taxing Authority in accordance with all applicable lawlaws. The Company Issuer will furnish use its reasonable best efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Authority imposing such Taxes. The Issuer will, upon request, make available to the trusteeHolder, within 30 60 days after the date the payment of any taxes Taxes so deducted or withheld is due pursuant to applicable law, either certified copies of tax receipts evidencing such payment orby the Issuer, if or if, notwithstanding the Issuer's efforts to obtain such receipts receipts, the same are not obtainable, other evidence of such payments reasonably satisfactory by the Issuer. At least 30 days prior to each date on which any payment under or with respect to the Trustee. Upon requestNotes is due and payable, copies of those receipts or other evidence of payments, as if the case may be, Issuer will be made available by obligated to pay Additional Amounts with respect to such payment, the Trustee Issuer will deliver to the Holders or beneficial owners Holder an Officers' Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable. The foregoing provisions shall survive any termination of the Notes.
(c) discharge of this Master Loan Agreement and shall apply mutatis mutandis to any jurisdiction in which any successor Person to the Company Issuer is organized or is engaged in business for tax purposes or any political subdivisions or taxing authority or agency thereof or therein. In addition, the Issuer will pay any stamp, issue, registration, court, documentary or value added taxesother similar taxes and duties, including interest, penalties and Additional Amounts with respect thereto, payable in the United States or any other excise political subdivision or property taxes, charges taxing authority of or similar levies (including, in each case, interest and penalties) payable the foregoing in respect of the creation, issue, offering, executionenforcement, delivery, registration, enforcement redemption or making payments in respect retirement of the Notes, or any documentation with respect thereto, excluding any such taxes, charges or similar levies imposed by any jurisdiction other than a Relevant Taxing Jurisdiction except those resulting from, or required to be paid in connection with, the enforcement of the Notes after the occurrence and during the continuance of a default with respect to the Notes.
(d) Any reference Note. Whenever in this Indenture Master Loan Agreement or the Notes there is mentioned, in any context to the delivery of ADSs (together with payments of cash for any fractional ADSs) upon conversion of the Notes or context, the payment of principal of (including the Fundamental Change Repurchase Priceprincipal, if applicableredemption price, and the Redemption Price, if applicable), and any premium or interest, including any Additional Interest, on, any Note interest or any other amount payable under or with respect to such any Note, such mention shall be deemed to include any mention of the payment of Additional AmountsAmounts to the extent that, unless the context requires otherwisein such context, that are Additional Amounts are, were or may would be payable with in respect to that amount under the obligations referred to in this Section 5.10.
(e) The foregoing obligations shall survive termination or discharge of this Indenture.thereof. ARTICLE ELEVEN
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Sources: Master Loan Agreement (Tycom LTD)