Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto); (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable: (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto); (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or (IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and (D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and (E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower Agent and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will enable the Borrowers Borrower Agent or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall shall, to the extent U.S. federal tax laws so allow, deliver to the Borrowers Borrower Agent and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; 83 ▇▇▇▇▇ ▇▇▇▇▇▇ Credit and Guaranty Agreement AMERICAS/2022758566.11
(2) executed copies of IRS Form W-8ECI;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” related to the Borrowers as described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Borrower Agent or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower Agent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower Agent or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.. 84 ▇▇▇▇▇ ▇▇▇▇▇▇ Credit and Guaranty Agreement AMERICAS/2022758566.11
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower Agent and the Administrative Agent in writing of its legal inability to do so.
(iv) Each Lender shall, on or before the date it becomes a party hereto, inform the Irish Borrower whether it is an Irish Qualifying Lender. Any such Lender shall also promptly notify the Borrower Agent if it subsequently ceases to be an Irish Qualifying Lender or subsequently becomes an Irish Qualifying Lender.
(v) If a Lender with respect to a Loan to an Irish Borrower fails to confirm that it is an Irish Qualifying Lender in accordance with Section 3.01(e)(iv) then such Lender shall be treated for purposes of this Agreement as if it was not an Irish Qualifying Lender until such time as it confirms that it is an Irish Qualifying Lender.
(vi) Notwithstanding anything to the contrary in any Loan Document (but subject to the proviso in this Section 3.01(e)(vi), no Irish Borrower shall be required to make an increased payment to a Lender under this Section 3.01 or any Loan Document for any Tax deduction imposed under the laws of Ireland from a payment of interest by any Irish Borrower under a Loan Document if:
(A) on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax deduction if the Lender was an Irish Qualifying Lender but, on that date, the Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under a Loan Document in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant tax authority, or
(B) the relevant Lender is a Treaty Lender and the applicable Irish Borrower is able to demonstrate that the payment could have been made to the Lender without the Tax deduction had the Treaty Lender complied with its obligations under Section 3.01(e)(viii); provided, however, that (1) if a Lender assigns or transfers any of its rights or obligations under the Loan Documents to an assignee Lender (or designates a new Lending Office), and at the date of such assignment or transfer (or designation of a new Lending Office) an Irish Borrower would be obliged to make an increased payment to such assignor Lender under Section 3.01(a), then such assignee Lender shall be entitled to receive increased payments under Section 3.01(a) from such Irish Borrower to the same extent such assignor Lender would have been entitled to if the assignment or transfer (or designation of new Lending Office) had not occurred; (2) the applicable Irish Borrower shall be required to make increased payments under Section 3.01(a) to a Lender that is an assignee pursuant to a request by the applicable Borrower under Section 3.06, and (3) the applicable Irish Borrower shall be required to make increased payments to a Lender under Section 3.01(a) with respect to any Taxes arising as a result of an Irish Borrower failing to comply with its obligations under Section 3.01(e)(viii). 85 ▇▇▇▇▇ ▇▇▇▇▇▇ Credit and Guaranty Agreement AMERICAS/2022758566.11
(vii) Upon request from an Irish Borrower, each Lender with respect to a Loan to an Irish Borrower shall promptly provide such information as shall be reasonably requested to enable such Irish Borrower to verify that such Lender is an Irish Qualifying Lender and to comply with the provisions of sections 891A and 891E of the TCA (or any regulations made in respect of or in connection with such sections).
(viii) Each Treaty Lender and each applicable Irish Borrower that makes a payment to which that Treaty Lender is entitled shall cooperate in completing any procedural formalities as may be necessary or advisable for such Irish Borrower to obtain authorization to make such payment without any Tax deduction imposed under the laws of Ireland.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Status of Lenders; Tax Documentation. (i) Any For purposes of this Section 3.01(e), the term “Lender” includes any L/C Issuer. Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completiondelivery, completion and execution and submission of such documentation (other than such documentation set forth described in Section 3.01(e)(ii)(Asubsections (e)(ii)(A), (ii)(B) (ii)(De)(ii)(B) and (ii)(E) belowe)(iii)) shall not be required if in the Lender's ’s reasonable judgmentjudgment such delivery, as a result of a Change in Law, such completion, completion or execution or submission would subject such the Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such a Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), but only to the extent it is legally entitled to do so,
(A) any Lender that is a Person shall deliver to the Borrower and the Administrative Agent executed originals copies of IRS Form W-9 certifying that or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is exempt from U.S. federal subject to backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)information reporting requirements;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;,
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or section 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 G-1 to the effect that such Foreign Lender is not (each, A) a “U.S. Tax Compliance Certificate”)bank” within the meaning of section 881(c)(3)(A) of the Code, as applicable (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and duly (y) executed originals copies of IRS Internal Revenue Service Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); W-8BEN-E, or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partnerpartner together with the executed copies of the applicable IRS Forms;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipientRecipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), ) executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and.
(Diii) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (Diii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iiiiv) Each Lender agrees that shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction or if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in or expires and (B) update any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower Agent and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will enable the Borrowers Borrower Agent or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any each Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall shall, to the extent U.S. federal tax laws so allow, deliver to the Borrowers Borrower Agent and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower Agent or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower Agent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower Agent or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower Agent and the Administrative Agent in writing of its legal inability to do so.
(iv) Each Lender shall, on or before the date it becomes a party hereto, inform the Irish Borrower whether it is an Irish Qualifying Lender. Any such Lender shall also promptly notify the Borrower Agent if it subsequently ceases to be an Irish Qualifying Lender or subsequently becomes an Irish Qualifying Lender.
(v) If a Lender with respect to a Loan to an Irish Borrower fails to confirm that it is an Irish Qualifying Lender in accordance with Section 3.01(e)(iv) then such Lender shall be treated for purposes of this Agreement as if it was not an Irish Qualifying Lender until such time as it confirms that it is an Irish Qualifying Lender.
(vi) Notwithstanding anything to the contrary in any Loan Document (but subject to the proviso in this Section 3.01(e)(vii), no Irish Borrower shall be required to make an increased payment to a Lender under this Section 3.01 or any Loan Document for any Tax deduction imposed under the laws of Ireland from a payment of interest by any Irish Borrower under a Loan Document if:
(i) on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax deduction if the Lender was an Irish Qualifying Lender but, on that date, the Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under a Loan Document in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant tax authority, or
(ii) the relevant Lender is a Treaty Lender and the applicable Irish Borrower is able to demonstrate that the payment could have been made to the Lender without the Tax deduction had the Treaty Lender complied with its obligations under Section 3.01(e)(ix); provided, however, that (A) if a Lender assigns or transfers any of its rights or obligations under the Loan Documents to an assignee Lender (or designates a new Lending Office), and at the date of such assignment or transfer (or designation of a new Lending Office) an Irish Borrower would be obliged to make an increased payment to such assignor Lender under Section 3.01(a), then such assignee Lender shall be entitled to receive increased payments under Section 3.01(a) from such Irish Borrower to the same extent such assignor Lender would have been entitled to if the assignment or transfer (or designation of new Lending Office) had not occurred; (B) the applicable Irish Borrower shall be required to make increased payments under Section 3.01(a) to a Lender that is an assignee pursuant to a request by the applicable Borrower under Section 3.06, and (C) the applicable Irish Borrower shall be required to make increased payments to a Lender under Section 3.01(a) with respect to any Taxes arising as a result of an Irish Borrower failing to comply with its obligations under Section 3.01(e)(ix).
(vii) Upon request from an Irish Borrower, each Lender with respect to a Loan to an Irish Borrower shall promptly provide such information as shall be reasonably requested to enable such Irish Borrower to verify that such Lender is an Irish Qualifying Lender and to comply with the provisions of sections 891A and 891E of the TCA (or any regulations made in respect of or in connection with such sections).
(viii) Each Treaty Lender and each applicable Irish Borrower that makes a payment to which that Treaty Lender is entitled shall cooperate in completing any procedural formalities as may be necessary or advisable for such Irish Borrower to obtain authorization to make such payment without any Tax deduction imposed under the laws of Ireland.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or the taxing authorities of a jurisdiction pursuant to such applicable Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(Arequired pursuant to Sections 2.16(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(Ii) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN or W-BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(IIii) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(IIIiii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c881 (c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (eachG-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “U.S. 10 percent shareholder” of the Borrower or any Affiliate within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “United States Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN or W-BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form); or
(IViv) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form), a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law applicable Laws and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender▇▇▇▇▇▇'s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 2.16(e) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two (2) sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense expense, or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (xy) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (yz) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (y) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (z) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or and other certification documents from each beneficial owner, as applicable; provided that if if, the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate Certificate, substantially in the form of Exhibit H-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies (or originals, as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause subpart (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if if, any form or certification it previously delivered pursuant to this Section 3.01 3.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit and Security Agreement (AvidXchange Holdings, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Company and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.without
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of IRS Form W-9 W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
: (I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II2) executed originals copies of IRS Form W-8ECI W–8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H–1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 W–8BEN– E (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the CodeW–8BEN, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.; or
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers U.S. Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as will enable the Borrowers U.S. Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(ASections 5.01(e)(ii)(A), (ii)(B) (ii)(D5.01(e)(ii)(B) and (ii)(E5.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers U.S. Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers U.S. Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)IRS Form W-8BEN-E; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers U.S. Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers U.S. Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers U.S. Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 5.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers U.S. Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.1(g)(ii)(A), (ii)(B) (ii)(Dg)(ii)(B) and (ii)(Eg)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable Law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable Law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 E-2 or Exhibit H-3E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 E-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 3.1 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.the
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II2) executed originals copies of IRS Form W-8ECI W–8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇M–1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W– 8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable); or
or (IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W–8IMY, accompanied by IRS Form W-8ECIW– 8ECI, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 M–2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.Exhibit
Appears in 1 contract
Sources: Credit Agreement (Ameresco, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Parent Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Parent Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as will enable the Borrowers Parent Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D3.01(e)(ii)(B) and (ii)(E3.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Parent Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Parent Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Parent Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Parent Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article Article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article Article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Internal Revenue Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, ▇-▇a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, as applicable,; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Parent Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Parent Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Parent Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrowers Parent Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Parent Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as may be necessary for the Borrowers Parent Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Parent Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Montrose Environmental Group, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Company and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or the taxing authorities of a jurisdiction pursuant to such applicable Law or reasonably requested by the Borrowers Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any LenderRecipient, if reasonably requested by the Borrowers Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.35
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender Recipient that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender Recipient becomes a Lender under party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender Recipient is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
Tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
: (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretowhich for all purposes of this Agreement shall include an IRS Form W-8BEN-E where applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
W-8ECI; (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) E-1 to the extent a effect that such Foreign Lender is not a “bank” within the beneficial owner, executed originals meaning of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b881(c)(3)(A) of the Code, as applicable), such Lender shall deliver to a “10-percent shareholder” of the Borrowers and BDC Parent within the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by meaning of Section 1471(b)(3)(C)(i881(c)(3)(B) of the Code) and such additional documentation reasonably requested by the Borrowers , or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), a “FATCAcontrolled foreign corporation” shall include any amendments made to FATCA after the date of this Agreement.36
(iii) Each Lender Recipient agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, or if a successor version of such form or certification is published, it shall update such form or certification or promptly notify the Borrowers Company and the Administrative Agent in writing of its legal inability to do so. 37
(iv) Borrower shall deliver to the Administrative Agent on or prior to the Closing Date an executed original of IRS Form W-9. If such form becomes obsolete or inaccurate in any respect, or if a successor version of such form or certification is published, Borrower shall update such form or promptly notify the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Barings BDC, Inc.)
Status of Lenders; Tax Documentation. (i) Any The Administrative Agent and each Lender that is entitled to an exemption from or reduction of withholding Tax tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments made under any Loan Document this Agreement shall deliver to the Borrowers and Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agentlaw, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentencessentence, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A2.18(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 W 9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.Foreign
Appears in 1 contract
Sources: Credit Agreement (Cme Group Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or Applicable Law and reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.. NYDOCS02/1023777.17Midway Gold – Pan Gold Project – Credit Agreement
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI; or
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partnerW-8BEN-E;
(CA) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable Applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; andNYDOCS02/1023777.17Midway Gold – Pan Gold Project – Credit Agreement
(Diii) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if If a payment made to a Lender under any Loan Document this Agreement would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Applicable Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iiiiv) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Midway Gold Corp)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.1(g)(ii)(A), (ii)(B) (ii)(Dg)(ii)(B) and (ii)(Eg)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable Law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal Federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable Law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:: 90731114_8
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal Federal withholding Tax, duly completed, 90731114_8 together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.36 CHAR1\1756574v5
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
W-8ECI; (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (W-8BEN-E; or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.37 CHAR1\1756574v5
Appears in 1 contract
Sources: Credit Agreement (Ansys Inc)
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Company and to the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers Company or the Administrative Agent (and from time to time thereafter upon the request of the Company on behalf of such Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit such payments to be made without or at a reduced rate of withholding, and as will permit the Company or the Administrative Agent, as the case may be, to determine (A) whether or not payments made by the respective Borrowers hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the respective Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in the applicable jurisdictions.
(ii) Without limiting the generality of the foregoing, if a Borrower is resident for tax purposes in the United States:
(A) any Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Company and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers Company on behalf of such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers and as will enable such Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by as the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.; and
(iiB) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any each Foreign Lender that is a U.S. Person entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company on behalf of such Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(I) in the case a. executed originals of a Foreign Lender Internal Revenue Service Form W-8BEN claiming the eligibility for benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, party,
b. executed originals of IRS Internal Revenue Service Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;W-8ECI,
(II) c. executed originals of IRS Internal Revenue Service Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8IMY and all required supporting documentation,
(III) d. in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or section 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) certificate to the extent a effect that such Foreign Lender is not (A) a “bank” within the beneficial ownermeaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of such Borrower within the meaning of section 881(c)(3)(B) of the Code, (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code or (D) conducting a trade or business in the United States with which the relevant interest payments are effectively connected and (y) executed originals of IRS Internal Revenue Service Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;W-8BEN,
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) e. if a payment made to a Foreign Lender under any Loan Document would be subject to U.S. federal any withholding Tax imposed by FATCA if Taxes as a result of such Lender were to fail Foreign Lender’s failure to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers and Company or the Administrative Agent to comply with their its obligations under FATCA and FATCA, to determine that such Foreign Lender has or has not complied with such Foreign Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely payment in respect of FATCA, or
f. executed originals of any other form prescribed by applicable Laws as a basis for purposes of this clause (D), “FATCA” shall include any amendments made claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to FATCA after permit such Borrower or the date of this AgreementAdministrative Agent to determine the withholding or deduction required to be made.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly (A) notify the Borrowers Company and the Administrative Agent of any change in writing circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender (exercised in good faith), and as may be reasonably necessary (including the re-designation of its legal inability Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that any Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.
(iv) Each of the Borrowers shall promptly deliver (to the extent such Borrower is legally entitled to do so) to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the date hereof (or such later date on which it first becomes a Borrower), and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense expense, or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender ▇▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of the Borrowers or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)tax; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.72
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) the Administrative Agent and any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which the Administrative Agent or such Lender becomes the Administrative Agent or a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN, as applicable), establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN, as applicable), establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Potlatch Corp)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers U.S. Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as will enable the Borrowers U.S. Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(ASections 5.01(e)(ii)(A), (ii)(B) (ii)(D5.01(e)(ii)(B) and (ii)(E5.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any athe Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers U.S. Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers U.S. Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)IRS Form W-8BEN-E; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers U.S. Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers U.S. Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers U.S. Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 5.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers U.S. Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Co-Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Co-Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Co-Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Co-Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Co-Borrowers or the Administrative Agent as will enable the Co-Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Co-Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Co-Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Co-Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Co-Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Co-Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇“H-1” to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Co-▇Borrowers within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 “H-2” or Exhibit “H-3”, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 “H-4” on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Co-Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Co-Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Co-Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Co-Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Co-Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Co-Borrowers or the Administrative Agent as may be necessary for the Co-Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Co-Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any In addition to the requirement set forth in subsection (iii) below, any Lender that is entitled to an exemption from or reduction of withholding Tax tax with respect to payments made under any Loan Document shall deliver to the Borrowers Company and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In additionaddition to the requirements set forth in the preceding sentence and subsection (iii) below, any Lender, if reasonably requested by the Borrowers Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Company or the Administrative Agent as will enable the Borrowers Company or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirementsrequirements and shall otherwise cooperate with the Company to minimize the amount payable by any Loan Party pursuant to this Section 4.02. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A4.02(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. United States Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal United States Federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal United States Federal withholding Tax tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal United States Federal withholding Tax tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (eachH-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “U.S. 10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “United States Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal United States Federal withholding Taxtax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 4.02 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Company and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Revolving Credit Agreement (Gap Inc)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.11(f)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender (it being understood that a ▇▇▇▇▇▇’s provision of any information that, at the time such information is being provided, is required by any U.S. federal income tax withholding form that such Lender is otherwise required to complete pursuant to this Section 3.11(f) shall not be considered prejudicial to the position of such Lender). For purposes of determining withholding Taxes imposed under FATCA, from and after the Closing Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN-E, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN-E, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇K-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN-E, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN-E, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 K-2 or Exhibit H-3K-3, IRS Form W-9W-9 certifying that such beneficial owner is exempt from U.S. federal backup withholding tax, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 K-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Applicable Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 3.11 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification certification, provide such successor form or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested required by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person (including, for the avoidance of doubt, any Person that is a U.S. Person and that is treated for income tax purposes as the owner of the assets of a Lender that is a Disregarded Entity) shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two duly executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender (including, for the avoidance of doubt, any Person that is not a U.S. Person and that is treated for income tax purposes as the owner of the assets of a Lender that is a Disregarded Entity) shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), two duly executed originals of whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (W-8BEN or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E;
(BII) IRS Form W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no interest payments under any Loan Documents are effectively connected with such Foreign Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) IRS Form W-8BEN or W-8BEN-E; or
(IV) to the extent a Foreign Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies (or, if required by applicable Law, originals) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and FATCA, to determine that whether such Lender has complied with such Lender's ’s obligations under FATCA or and to determine the amount amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification documentation it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification documentation or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability ineligibility to do so.
(iv) Notwithstanding anything to the contrary in this Section 3.01(e), a Lender shall not be required to deliver any documentation pursuant to this Section 3.01(e) that such Lender is not legally eligible to deliver. Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender pursuant to this Section 3.01(e).
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (xy) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (yz) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (y) a statement certificate substantially in the form of Exhibit ▇-▇G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (z) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or and other certification documents from each beneficial owner, as applicable; provided that if if, the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate Certificate, substantially in the form of Exhibit H-4 G-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed copies or originals (as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law L▇▇ and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender L▇▇▇▇▇ has complied with such Lender's L▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause subpart (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if if, any form or certification it previously delivered pursuant to this Section 3.01 3.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit and Security Agreement (Universal Logistics Holdings, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.01(f)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.43
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II2) executed originals copies of IRS Form W-8ECI W–8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇M–1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable); or
or (IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W–8IMY, accompanied by IRS Form W-8ECIW–8ECI, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 M–2 or Exhibit H-3M–3, IRS Form W-9W–9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.44
Appears in 1 contract
Sources: Credit Agreement (Ameresco, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers either Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers either Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers such Borrower or the Administrative Agent as will enable the Borrowers such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers applicable Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers applicable Borrower or the Administrative Agent), two duly executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers applicable Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the applicable Borrower or the Administrative Agent), two of whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, duly executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax;
(2) duly executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) or 871 (h) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of either Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code and that no payments under any Loan Document are effectively connected with such Foreign Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) duly executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), duly executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of such direct and indirect partner(s);
(C) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding with-holding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers applicable Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(Diii) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(EA) if a any payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers applicable Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers such Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers such Borrower or the Administrative Agent as may be necessary for the Borrowers such Borrower and the Administrative Agent to comply with their obligations under FATCA and FATCA, to determine that whether such Lender has complied with such Lender's ’s obligations under FATCA or FATCA, and to determine the amount amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification documentation it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall promptly update such form or certification documentation or promptly notify the Borrowers applicable Borrower and the Administrative Agent in writing of its legal inability ineligibility to do so.
(iv) Notwithstanding anything to the contrary in this Section 3.01(e), a Lender shall not be required to deliver any documentation pursuant to this Section 3.01(e) that such Lender is not legally eligible to deliver.
(v) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender pursuant to this Section 3.01(e).
Appears in 1 contract
Sources: Credit Agreement (International Money Express, Inc.)
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in for so long as the event that any Borrower Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in for so long as the event that any Borrower Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender ▇▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D3.01(e)(ii)(B) and (ii)(E3.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.. 32 4847-1285-6953 v.7
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW- 8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W- 8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II2) executed originals of IRS Form W-8ECI W-8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN W- 8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
or (IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.33 4847-1285-6953 v.7
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Co-Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Co-Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Co-Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Co-Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Co-Borrowers or the Administrative Agent as will enable the Co-Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Co-Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Co-Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Co-Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Co-Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Co-Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇H-▇I to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇a “10 percent shareholder” of the Co-▇Borrowers within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BENE; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 H2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Co-Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Co-Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Co-Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Co-Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Co-Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Co-Borrowers or the Administrative Agent as may be necessary for the Co-Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Co-Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers a Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers a Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers a Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.Administrative
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
: (A) any Lender that is a U.S. Person shall deliver to the Borrowers such Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers such Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers such Borrower or the Administrative Agent), whichever of the following is applicable:
: (I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II2) executed originals copies of IRS Form W-8ECI W-8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) F-1 to the extent a effect that such Foreign Lender is not a “bank” within the beneficial owner, executed originals meaning of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b881(c)(3)(A) of the Code, as applicable), such Lender shall deliver to a “10 percent shareholder” of a Borrower within the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by meaning of Section 1471(b)(3)(C)(i881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) and such additional documentation reasonably requested by of the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause Code (D), a “FATCA” shall include any amendments made to FATCA after the date of this Agreement.U.S. Tax Compliance
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 7.8 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers such Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed required by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, Lender shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. PersonBorrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be required by law or requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter as required by law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 J-2 or Exhibit H-3J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense expense, or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of the Borrowers or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (xy) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (yz) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (y) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (z) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9, and/or and other certification documents from each beneficial owner, as applicable; provided that if if, the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate Certificate, substantially in the form of Exhibit H-4 I-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies (or originals, as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause subpart (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if if, any form or certification it previously delivered pursuant to this Section 3.01 3.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in for so long as the event that any Borrower Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(Ia) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “"interest” " article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “"business profits” " or “"other income” " article of such tax treaty;
(IIb) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(IIIc) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (eachH-1 to the effect that such Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, a “"10 percent shareholder" of the Company within the meaning of Section 881(c)(3)(B) of the Code, or a "controlled foreign corporation" described in Section 881(c)(3)(C) of the Code (a "U.S. Tax Compliance Certificate”), as applicable ") and duly (y) executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IVd) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “"FATCA” " shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
(iv) For purposes of determining withholding taxes imposed under FATCA, from and after the effective date of this Agreement, the Borrowers and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent and the Borrowers to treat) the Loans hereunder as not qualifying as a "grandfathered obligation" within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Potlatch Corp)
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, at the time or times prescribed by applicable law or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested by the Borrowers or the Administrative Agent information as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such as the case may be, to determine
(A) whether or not payments made by Borrower hereunder or under any other documentation prescribed by applicable law Loan Document are subject to Taxes, withholding (including backup withholding), or reasonably requested by deduction and if applicable, the Borrowers required rate of withholding or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine deduction,
(B) whether or not such Lender is subject to backup withholding or information reporting requirements, and
(C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding Tax purposes in the applicable jurisdictions. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) ii)(B)(1)-(4), (ii)(Diii) and (ii)(Ev) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower if ▇▇▇▇▇▇▇▇ is a U.S. Person,
(A) any Lender that is a U.S. Person Person, shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), ) executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. United States federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);withholding; and
(B) any each Foreign Lender shall, that is entitled under the Code or any applicable treaty to the extent it is legally entitled an exemption from or reduction of withholding Tax with respect to do so, payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an any income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. of United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;,
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or section 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇▇ to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, ▇-▇(B) a “10 percent shareholder” of Borrower within the meaning of section 871(h)(3)(B) of the Code, ▇-▇ or H-4 (each, C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or,
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 B-2 or Exhibit H-3B-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 B-4 on behalf of each such direct and indirect partner;, or
(C5) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and.
(Diii) Each Lender shall promptly update and deliver any such form or certificate it previously delivered that has expired or become obsolete or inaccurate in any respect or notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(iv) Borrower shall promptly deliver to the Borrowers Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the date on which Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Administrative Agent becomes Laws of any jurisdiction, duly executed and completed by ▇▇▇▇▇▇▇▇, as are required to be furnished by such Lender or the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or such Laws in connection with any substantively comparable subsequent versions thereof or successors thereto) certifying that payment by the Administrative Agent is exempt from United States federal backup withholding tax and or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; andjurisdiction.
(Ev) if If a payment made to a any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i1471 (b)(3 )(C)(i) of the Code) ), and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, in each case, as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (Dv), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (Nabors Industries LTD)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Internal Revenue Service Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇M-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 M-2 or Exhibit H-3M-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 M-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal United States Federal withholding Tax, duly completed, tax together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and.
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Unitil Corp)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.. 32 Cboe Global Markets, Inc. – Credit Agreement (Term Loan Credit Facility)
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form attached hereto as Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Exhibit ▇-▇Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of attached hereto as Exhibit H-2 E-2 or Exhibit H-3E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of attached hereto as Exhibit H-4 E-4 on behalf of each such direct and indirect partner;; 33 Cboe Global Markets, Inc. – Credit Agreement (Term Loan Credit Facility)
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Cboe Global Markets, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed required by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, Lender shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. PersonBorrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be required by law or requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter as required by law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇WEST\258439317.6 319678-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.00008966
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Status of Lenders; Tax Documentation.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Joint Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Joint Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Joint Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Joint Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Joint Administrative Agent as will enable the Borrowers Borrower or the Joint Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender..
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Joint Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Joint Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Joint Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Joint Administrative Agent), whichever of the following is applicable::
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with 66 respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (W-8BEN; or any substantively comparable subsequent versions thereof or successors thereto); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 I-4 on behalf of each such direct and indirect partner;;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Joint Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Joint Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Joint Administrative Agent to determine the withholding or deduction required to be made; andand
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Joint Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Joint Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Joint Administrative Agent as may be necessary for the Borrowers Borrower and the Joint Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement..
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Joint Administrative Agent in writing of its legal inability to do so..
Appears in 1 contract
Sources: Credit Agreement (Green Plains Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or the taxing authorities of a jurisdiction pursuant to such applicable Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(Arequired pursuant to Sections 2.16(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (Ii) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN or W-BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (IIii) executed originals copies of IRS Form W-8ECI W-8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(IIIiii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c881 (c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (eachG-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “U.S. 10 percent shareholder” of the Borrower or any Affiliate within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “United States Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN or W-BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form); or
or (IViv) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretosuccessor form), a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law applicable Laws and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 2.16(e) expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Domestic Borrower or the Foreign Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Domestic Borrower, the Foreign Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Domestic Borrower, the Foreign Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Domestic Borrower, the Foreign Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Domestic Borrower, the Foreign Borrower or the Administrative Agent as will enable the Borrowers Domestic Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirementsrequirements or any other applicable withholding tax. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(iii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Domestic Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Domestic Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 W‑9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Domestic Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Domestic Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W‑8BEN‑E (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W‑8BEN‑E (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W‑8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F‑1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W‑8BEN‑E (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W‑8IMY, accompanied by IRS Form W-8ECIW‑8ECI, IRS Form W-8BEN W‑8BEN‑E (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F‑2 or Exhibit H-3F‑3, IRS Form W-9W‑9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F‑4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Domestic Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Domestic Borrower or the Administrative Agent), executed originals copies (or originals, as required) of any other form prescribed by applicable law Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Applicable Law to permit the Borrowers Domestic Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Domestic Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Domestic Borrower or the Administrative Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Domestic Borrower or the Administrative Agent as may be necessary for the Borrowers Domestic Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iiiii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Domestic Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Second Amended and Restated Credit Agreement (Diodes Inc /Del/)
Status of Lenders; Tax Documentation. (i) Any For purposes of this Section 3.01(e), the term “Lender” includes any L/C Issuer. Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completiondelivery, completion and execution and submission of such documentation (other than such documentation set forth described in Section 3.01(e)(ii)(Asubsections (e)(ii)(A), (ii)(B) (ii)(De)(ii)(B) and (ii)(E) belowe)(iii)) shall not be required if in the Lender's ’s reasonable judgmentjudgment such delivery, as a result of a Change in Law, such completion, completion or execution or submission would subject such the Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such a Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), but only to the extent it is legally entitled to do so,
(A) any Lender that is a Person shall deliver to the Borrower and the Administrative Agent executed originals copies of IRS Form W-9 certifying that or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is exempt from U.S. federal subject to backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)information reporting requirements;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;,
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or section 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 G-1 to the effect that such Foreign Lender is not (each, A) a “U.S. Tax Compliance Certificate”)bank” within the meaning of section 881(c)(3)(A) of the Code, as applicable (B) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and duly (y) executed originals copies of IRS Internal Revenue Service Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); W-8BEN-E, or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partnerpartner together with the executed copies of the applicable IRS Forms;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be reasonably requested by the recipientRecipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), ) executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and.
(Diii) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (Diii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iiiiv) Each Lender agrees that shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction or if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in or expires and (B) update any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed required by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, Lender shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. PersonBorrower,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be required by law or requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter as required by law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:: WEST\275206959.13
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, as applicable) ; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 J-2 or Exhibit H-3J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 J-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary WEST\275206959.13 documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Wageworks, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.. 35 Cboe Global Markets, Inc. - Credit Agreement(Term Loan Credit Facility)
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form attached hereto as Exhibit E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Exhibit ▇-▇Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of attached hereto as Exhibit H-2 E-2 or Exhibit H-3E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of attached hereto as Exhibit H-4 E-4 on behalf of each such direct and indirect partner;; 36 Cboe Global Markets, Inc. - Credit Agreement(Term Loan Credit Facility)
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Cboe Global Markets, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers BorrowerCompany and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers BorrowerCompany or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers BorrowerCompany or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers BorrowerCompany or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers BorrowerCompany or the Administrative Agent as will enable the Borrowers BorrowerCompany or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any thea Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers BorrowerCompany and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers BorrowerCompany or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers BorrowerCompany and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers BorrowerCompany or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the BorrowerCompany within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers BorrowerCompany and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers BorrowerCompany or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers BorrowerCompany or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers BorrowerCompany and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers BorrowerCompany or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers BorrowerCompany or the Administrative Agent as may be necessary for the Borrowers BorrowerCompany and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers BorrowerCompany and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative A Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Cbeyond, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Joint Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Joint Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Joint Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Joint Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Joint Administrative Agent as will enable the Borrowers Borrower or the Joint Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Joint Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Joint Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Joint Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Joint Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 I-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Joint Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Joint Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Joint Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Joint Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Joint Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Joint Administrative Agent as may be necessary for the Borrowers Borrower and the Joint Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Joint Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Green Plains Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers ▇▇▇▇▇ and the Administrative applicable Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative such Agent, such properly completed and executed documentation reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative such Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative applicable Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative such Agent as will enable the Borrowers ▇▇▇▇▇ or the Administrative such Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(ASections 3.01(g)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below)) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,:
(A) any Lender that is a U.S. Person shall deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent on or prior to the date on which such Lender ▇▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers ▇▇▇▇▇ or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers ▇▇▇▇▇ or the Administrative Agent), whichever of the following is applicable:
(Iiii) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(IIiv) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(IIIv) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇K-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IVvi) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 K-2 or Exhibit H-3K-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that provided, that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 K-4 on behalf of each such direct and indirect partner;
(CA) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers ▇▇▇▇▇ or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers ▇▇▇▇▇ or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(EB) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative Agent as may be necessary for the Borrowers ▇▇▇▇▇ and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (DSection 3.01(g)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iiivii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers ▇▇▇▇▇ and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent (including, without limitation, Forms W-9 and W-8) as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. For purposes of determining withholding Taxes imposed under FATCA, from and after the effective date of the Second Amendment, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇M-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 M-2 or Exhibit H-3M-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 M-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies (or originals, as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Fabrinet)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower Agent and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution 74 ▇▇▇▇▇ ▇▇▇▇▇▇ Amended and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) Restated Credit and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.Guaranty Agreement NYDOCS03/1067767.15
(ii) Without limiting the generality of the foregoing, in the event that any each Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall shall, to the extent U.S. federal tax laws so allow, deliver to the Borrowers Borrower Agent and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), whichever of the following is applicable:
: (I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II2) executed originals copies of IRS Form W-8ECI W-8ECI; (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) F-1 to the extent a effect that such Foreign Lender is not a “bank” within the beneficial owner, executed originals meaning of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b881(c)(3)(A) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) a “10 percent shareholder” of the Code) 75 ▇▇▇▇▇ ▇▇▇▇▇▇ Amended and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers Restated Credit and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.Guaranty Agreement NYDOCS03/1067767.15
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect76 ▇▇▇▇▇ ▇▇▇▇▇▇ Amended and Restated Credit and Guaranty Agreement NYDOCS03/1067767.15
(iv) Each Lender shall, on or before the date it becomes a party hereto, inform the Irish Borrower whether it is an Irish Qualifying Lender. Any such Lender shall update such form or certification or also promptly notify the Borrowers Borrower Agent if it subsequently ceases to be an Irish Qualifying Lender or subsequently becomes an Irish Qualifying Lender.
(v) If a Lender with respect to a Loan to an Irish Borrower fails to confirm that it is an Irish Qualifying Lender in accordance with Section 3.01(e)(iv) then such Lender shall be treated for purposes of this Agreement as if it was not an Irish Qualifying Lender until such time as it confirms that it is an Irish Qualifying Lender.
(vi) Notwithstanding anything to the contrary in any Loan Document (but subject to the proviso in this Section 3.01(e)(vii), no Irish Borrower shall be required to make an increased payment to a Lender under this Section 3.01 or any Loan Document for any Tax deduction imposed under the laws of Ireland from a payment of interest by any Irish Borrower under a Loan Document if: (i) on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax deduction if the Lender was an Irish Qualifying Lender but, on that date, the Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under a Loan Document in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant tax authority, or (ii) the relevant Lender is a Treaty Lender and the Administrative Agent in writing applicable Irish Borrower is able to demonstrate that the payment could have been made to the Lender without the Tax deduction had the Treaty Lender complied with its obligations under Section 3.01(e)(viii); provided, however, that (A) if a Lender assigns or transfers any of its legal inability rights or obligations under the Loan Documents to do soan assignee Lender (or designates a new Lending Office), and at the date of such assignment or transfer (or designation of a new Lending Office) an Irish Borrower would be obliged to make an increased payment to such assignor Lender under Section 3.01(a), then such assignee Lender shall be entitled to receive increased payments under Section 3.01(a) from such Irish Borrower to the same extent such assignor Lender would have been entitled to if the assignment or transfer (or designation of new Lending Office) had not occurred; (B) the applicable Irish Borrower shall be required to make increased payments under Section 3.01(a) to a Lender that is an assignee pursuant to a request by the applicable Borrower under Section 3.06, and (C) the applicable Irish Borrower shall be required to make increased payments to a Lender under Section 3.01(a) with respect to any Taxes arising as a result of an Irish Borrower failing to comply with its obligations under Section 3.01(e)(viii). 77 ▇▇▇▇▇ ▇▇▇▇▇▇ Amended and Restated Credit and Guaranty Agreement NYDOCS03/1067767.15
(vii) Upon request from an Irish Borrower, each Lender with respect to a Loan to an Irish Borrower shall promptly provide such information as shall be reasonably requested to enable such Irish Borrower to verify that such Lender is an Irish Qualifying Lender and to comply with the provisions of sections 891A and 891E of the TCA (or any regulations made in respect of or in connection with such sections).
(viii) Each Treaty Lender and each applicable Irish Borrower that makes a payment to which that Treaty Lender is entitled shall cooperate in completing any procedural formalities as may be necessary or advisable for such Irish Borrower to obtain authorization to make such payment without any Tax deduction imposed under the laws of Ireland.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (James Hardie Industries PLC)
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, at the time or times prescribed by applicable law or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested by the Borrowers or the Administrative Agent information as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such as the case may be, to determine
(A) whether or not payments made by Borrower hereunder or under any other documentation prescribed by applicable law Loan Document are subject to Taxes, withholding (including backup withholding), or reasonably requested by deduction and if applicable, the Borrowers required rate of withholding or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine deduction,
(B) whether or not such Lender is subject to backup withholding or information reporting requirements, and
(C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by Borrower pursuant to this Agreement or otherwise to establish such Lender’s status for withholding Tax purposes in the applicable jurisdictions. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) ii)(B)(1)-(4), (ii)(Diii) and (ii)(Ev) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any if Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person Person, shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), ) executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. United States federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);withholding; and
(B) any each Foreign Lender shall, that is entitled under the Code or any applicable treaty to the extent it is legally entitled an exemption from or reduction of withholding Tax with respect to do so, payments hereunder or under any other Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an any income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. of United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;,
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or section 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇▇ to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, ▇-▇(B) a “10 percent shareholder” of Borrower within the meaning of section 871(h)(3)(B) of the Code, ▇-▇ or H-4 (each, C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or,
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 B-2 or Exhibit H-3B-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 B-4 on behalf of each such direct and indirect partner;, or
(C5) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and.
(Diii) Each Lender shall promptly update and deliver any such form or certificate it previously delivered that has expired or become obsolete or inaccurate in any respect or notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(iv) Borrower shall promptly deliver to the Borrowers Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the date on which Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Administrative Agent becomes Laws of any jurisdiction, duly executed and completed by Borrower, as are required to be furnished by such Lender or the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or such Laws in connection with any substantively comparable subsequent versions thereof or successors thereto) certifying that payment by the Administrative Agent is exempt from United States federal backup withholding tax and or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; andjurisdiction.
(Ev) if If a payment made to a any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i1471 (b)(3 )(C)(i) of the Code) ), and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, in each case, as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (Dv), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Parker Drilling Co /De/)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if such Lender is not legally entitled to deliver such documentation or in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,:
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (McGrath Rentcorp)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments made under any Loan Document or Letter of Credit shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers either Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers either Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers such Borrower or the Administrative Agent as will enable the Borrowers such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers applicable Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers applicable Borrower or the Administrative Agent), two duly executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers applicable Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the applicable Borrower or the Administrative Agent), two of whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party, duly executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax;
(2) duly executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) or 871 (h) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of either Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code and that no payments under any Loan Document are effectively connected with such Foreign Lender’s conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) duly executed originals of IRS Form W-8BEN-E (or W-8BEN, as applicable); or
(4) to the extent a Foreign Lender is not the beneficial owner (for example, where the Lender is a partnership or a participating Lender), duly executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of such direct and indirect partner(s);
(C) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding with-holding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers applicable Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(iii) (D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or if any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document or Letter of Credit would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers applicable Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers such Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers such Borrower or the Administrative Agent as may be necessary for the Borrowers such Borrower and the Administrative Agent to comply with their obligations under FATCA and FATCA, to determine that whether such Lender has complied with such Lender's ’s obligations under FATCA or FATCA, and to determine the amount amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification documentation it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall promptly update such form or certification documentation or promptly notify the Borrowers applicable Borrower and the Administrative Agent in writing of its legal inability ineligibility to do so.
(iv) Notwithstanding anything to the contrary in this Section 3.01(e), a Lender shall not be required to deliver any documentation pursuant to this Section 3.01(e) that such Lender is not legally eligible to deliver.
(v) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender pursuant to this Section 3.01(e).
Appears in 1 contract
Sources: Credit Agreement (International Money Express, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), properly completed and executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) properly completed and executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇L-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) properly completed and executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)from the Foreign Lender, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 L-2 or Exhibit H-3L-3, properly completed and executed originals of IRS Form W-9W-9 and/or IRS Form W-8IMY, and/or other certification required documents from each intermediary and direct or indirect beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 L-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each The Administrative Agent and each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such provide a new form or certification on or before the next Interest Payment Date or promptly notify the Borrowers Borrower and the Administrative Agent Agent, as the case may be, in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Solarcity Corp)
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, on or prior to the Effective Date and at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested by the Borrowers or the Administrative Agent information as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by as the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent case may be, to determine (A) whether or not payments made by the Borrower hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender is subject by the Borrower pursuant to backup this Agreement or otherwise to establish such Lender’s status for withholding or information reporting requirementsTax purposes in the applicable jurisdictions. Notwithstanding anything to the contrary in the preceding two sentencessentence, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A4.1(e)(ii)(A), (ii)(B) (ii)(DSection 4.1(e)(ii)(B) and (ii)(ESection 4.1(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgement such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, if the Borrower is resident for Tax purposes in the event that any Borrower is a U.S. PersonUnited States,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” as described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)IRS Form W 8BEN-E; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 I-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender (A) agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or certification, (B) shall promptly notify the Borrowers Borrower and the Administrative Agent of any change in writing circumstances which would modify or render invalid any claimed exemption or reduction, and (C) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its legal inability Lending Office) to do soavoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for Taxes from amounts payable to such Lender.
(iv) The Loan Parties shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Effective Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by the Loan Parties, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender or L/C Issuer that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any LenderLender or L/C Issuer, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender or L/C Issuer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s or L/C Issuer’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender or such L/C Issuer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lenderexpense.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender or L/C Issuer that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender or L/C Issuer becomes a Lender or L/C Issuer under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender or L/C Issuer is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN if applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN if applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN if applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN if applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 E-2 or Exhibit H-3E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 E‑4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender or L/C Issuer under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender or L/C Issuer were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or L/C Issuer shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender or L/C Issuer has complied with such Lender's Lender or L/C Issuer’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementAgreement and for purposes of this Section 3.01 the term “applicable Laws” shall include FATCA.
(iii) Each Lender and L/C Issuer agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Company and to the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested by the Borrowers or the Administrative Agent information as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers a Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers such Borrower or the Administrative Agent as will enable the Borrowers such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D3.01(e)(ii)(B) and (ii)(E3.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender L▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), ) executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);Tax; and
(B) any each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding Tax with respect to payments hereunder or under any other Loan Document shall deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(I) in the case of a Foreign Lender (or if the Foreign Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. Federal tax purposes) entitled to the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest hereunder or under any other Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments hereunder or under any other Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(II) executed copies of IRS Form W-8ECI,
(III) to the extent a Foreign Lender (or if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. federal tax purposes) is not the beneficial owner, executed copies of IRS Form W-8IMY and all required supporting documentation (including IRS Forms W-9 or W-9), or
(IV) in the case of a Foreign Lender (or if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. federal tax purposes) claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed copies of IRS Form W-8BEN or W-8BEN-E, or
(C) each Foreign Lender (or if such Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. federal tax purposes) shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, Tax together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender L▇▇▇▇▇ has complied with such Lender's L▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Company and the Administrative Agent in writing of its legal inability to do so.
(iv) Each Borrower shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date (or such later date on which it first becomes a Borrower), and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction; provided, that the completion, execution and submission of any documentation by a Borrower pursuant to this Section 3.01(e)(iv) shall not be required if in such Borrower’s reasonable judgment such completion, execution or submission would subject such Borrower to any material unreimbursed cost or expense or would materially prejudice its legal or commercial position.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense expense, or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (xy) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (yz) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (y) a statement certificate substantially in the form of Exhibit ▇-▇G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (z) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or and other certification documents from each beneficial owner, as applicable; provided that if if, the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate Certificate, substantially in the form of Exhibit H-4 G-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed copies or originals (as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause subpart (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if if, any form or certification it previously delivered pursuant to this Section 3.01 3.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit Agreement (Universal Logistics Holdings, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 reasonably requested by the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent, any Lender shall deliver such other documentation prescribed by applicable law Applicable Law or reasonably requested by the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent as will enable the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent), executed originals copies of IRS Form W-9 W–9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W–8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇G–1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W–8IMY, accompanied by IRS Form W-8ECIW–8ECI, IRS Form W-8BEN W–8BEN–E (or any substantively comparable subsequent versions thereof or successors theretoW–8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G–2 or Exhibit H-3G–3, IRS Form W-9W–9, and/or other certification documents ▇▇▇▇-▇▇▇▇-▇▇▇▇.13 from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 G–4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent), executed originals copies (or originals, as required) of any other form prescribed by applicable law Applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Applicable Law to permit the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent such documentation prescribed by applicable law Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower, the Administrative Agent or the Administrative Security Agent as may be necessary for the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this clause (Df)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower, the Administrative Agent and the Administrative Security Agent in writing of its legal inability to do so.
(iv) On or prior to the date that the Administrative Agent (and any successor thereto) becomes a party to this Agreement, and from time to time as reasonably requested by the Borrower, (x) if the Administrative Agent is a U.S. Person, it shall provide the Borrower executed copies of IRS Form W-9, or (y) if the Administrative Agent is not a U.S. Person, it shall provide the Borrower executed copies of IRS Form W-8IMY certifying that the Administrative Agent is acting as a “qualified intermediary” or a “nonqualified intermediary,” as applicable, and accompanied by any required attachments (including, as applicable, certification documents from each beneficial owner). In addition, with respect to any U.S.-source fees, interest or other payments received on its behalf, the Administrative Agent or the Security Agent, as applicable, shall provide the Borrower executed copies of IRS Form W-8BEN-E claiming an exemption under an applicable tax treaty or IRS Form W-8ECI, in each case, that would allow the Borrower to make such payments to it without deduction or withholding of any U.S. federal withholding Taxes. The Administrative Agent and the Security Agent each agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower of its legal ineligibility to do so. ▇▇▇▇-▇▇▇▇-▇▇▇▇.13
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense expense, or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (xy) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (yz) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (y) a statement certificate substantially in the form of Exhibit ▇-▇G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (z) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or and other certification documents from each beneficial owner, as applicable; provided that if if, the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate Certificate, substantially in the form of Exhibit H-4 G-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed copies or originals (as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause subpart (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if if, any form or certification it previously delivered pursuant to this Section 3.01 3.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit and Security Agreement (Universal Logistics Holdings, Inc.)
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in for so long as the event that any Borrower Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender ▇▇▇▇▇▇ becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two (2) sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.2(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if if, in the Lender's ’s reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense expense, or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (xy) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (yz) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (y) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of a Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (z) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9, and/or and other certification documents from each beneficial owner, as applicable; provided that if if, the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate Certificate, substantially in the form of Exhibit H-4 I-4 hereto on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals copies (or originals, as required) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause subpart (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if if, any form or certification it previously delivered pursuant to this Section 3.01 3.2 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Credit and Security Agreement (AvidXchange Holdings, Inc.)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments made under any Loan Document or Letter of Credit shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers any Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers any Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers such Borrower or the Administrative Agent as will enable the Borrowers such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), two duly executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), two of whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Documentparty, duly executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treatyTax;
(II2) duly executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h881(c) or 881(c871 (h) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” related to any Borrower as described in Section 881(c)(3)(C) of the Code and that no payments under any Loan Document are effectively connected with such Foreign Lender’s conduct of a U.S. trade or business (each, a “U.S. Tax Compliance Certificate”), as applicable ) and (y) duly executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial ownerowner (for example, where the Lender is a partnership or a participating Lender), duly executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partnerpartner(s);
(C) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding with-holding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(i) (D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or if any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document or Letter of Credit would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers such Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers such Borrower or the Administrative Agent as may be necessary for the Borrowers such Borrower and the Administrative Agent to comply with their obligations under FATCA and FATCA, to determine that whether such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or FATCA, and to determine the amount amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification documentation it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall promptly update such form or certification documentation or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability ineligibility to do so.
(ii) Notwithstanding anything to the contrary in this Section 3.01(e), a Lender shall not be required to deliver any documentation pursuant to this Section 3.01(e) that such Lender is not legally eligible to deliver.
(iii) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender pursuant to this Section 3.01(e).
Appears in 1 contract
Sources: Credit Agreement (International Money Express, Inc.)
Status of Lenders; Tax Documentation. (i) Any In addition to the requirement set forth in subsection (iii) below, any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrowers Parent Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In additionaddition to the requirements set forth in the preceding sentence and subsection (iii) below, any Lender, if reasonably requested by the Borrowers Parent Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as will enable the Borrowers Parent Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(Aparagraphs (e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) belowof this Section) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. United States Person shall deliver to the Borrowers Parent Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Parent Borrower or the Administrative Agent), two properly completed and duly executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. United States federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers Parent Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Parent Borrower or the Administrative Agent), two properly completed and duly executed copies of whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement properly completed and duly executed certificate substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (eachH-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Parent Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” related to any U.S. Borrower as described in Section 881(c)(3)(C) of the Code (a “United States Tax Compliance Certificate”), as applicable and duly executed originals that no payments to be made to such Foreign Lender will be effectively connected with its conduct of a U.S. trade or business and (y) IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial ownerowner (e.g., executed originals of where the Foreign Lender is a partnership or a participating Lender), IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by copies of IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. properly completed and duly executed United States Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that that, if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. United States Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partnerpartner(s);
(C) any Foreign Lender shall, to the extent it is legally entitled eligible to do so, deliver to the Borrowers Parent Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Parent Borrower or the Administrative Agent), two properly completed and duly executed originals copies of any other form documentation prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal United States Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Parent Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Parent Borrower and the Administrative Agent at the time or times prescribed by law applicable Laws and at such time or times reasonably requested by the Borrowers Parent Borrower or the Administrative Agent such documentation prescribed by applicable law Laws (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Parent Borrower or the Administrative Agent as may be necessary for the Borrowers Parent Borrower and the Administrative Agent to comply with their obligations under FATCA and FATCA, to determine that whether such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that that, if any form or certification documentation it previously delivered pursuant to this Section 3.01 4.02 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification documentation or promptly notify the Borrowers Parent Borrower and the Administrative Agent in writing of its legal inability ineligibility to do so.
(iv) Each Lender hereby authorizes the Agent to deliver to the Parent Borrower and to any successor Agent any documentation provided by such Lender to the Agent pursuant to this Section 4.02(e).
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower Agent and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower Agent or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as will enable the Borrowers Borrower Agent or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any each Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall shall, to the extent U.S. federal tax laws so allow, deliver to the Borrowers Borrower Agent and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of IRS Form W-9 W‑9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W‑8BENE (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W‑8BENE (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; 57
(2) executed copies of IRS Form W‑8ECI;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇E‑1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrowers within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W‑8BENE (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W‑8IMY, accompanied by IRS Form W-8ECIW‑8ECI, IRS Form W-8BEN W‑8BENE (or any substantively comparable subsequent versions thereof or successors theretoW‑8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 E‑2 or Exhibit H-3E‑3, IRS Form W-9W‑9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 E‑4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower Agent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower Agent or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower Agent or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower Agent and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower Agent or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower Agent or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with 58 such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower Agent and the Administrative Agent in writing of its legal inability to do so.
(iv) Each Lender shall, on or before the date it becomes a party hereto, inform the Irish Borrower whether it is an Irish Qualifying Lender. Any such Lender shall also promptly notify the Borrower Agent if it subsequently ceases to be an Irish Qualifying Lender or subsequently becomes an Irish Qualifying Lender.
(v) If a Lender with respect to a Loan to an Irish Borrower fails to confirm that it is an Irish Qualifying Lender in accordance with Section 3.01(e)(iv) then such Lender shall be treated for purposes of this Agreement as if it was not an Irish Qualifying Lender until such time as it confirms that it is an Irish Qualifying Lender.
(vi) Notwithstanding anything to the contrary in any Loan Document (but subject to the proviso in this Section 3.01(e)(vii), no Irish Borrower shall be required to make an increased payment to a Lender under this Section 3.01 or any Loan Document for any Tax deduction imposed under the laws of Ireland from a payment of interest by any Irish Borrower under a Loan Document if:
(i) on the date on which the payment falls due the payment could have been made to the relevant Lender without a Tax deduction if the Lender was an Irish Qualifying Lender but, on that date, the Lender is not or has ceased to be an Irish Qualifying Lender other than as a result of any change after the date it became a Lender under a Loan Document in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant tax authority, or
(ii) the relevant Lender is a Treaty Lender and the applicable Irish Borrower is able to demonstrate that the payment could have been made to the Lender without the Tax deduction had the Treaty Lender complied with its obligations under Section 3.01(e)(viii); provided, however, that (A) if a Lender assigns or transfers any of its rights or obligations under the Loan Documents to an assignee Lender (or designates a new Lending Office), and at the date of such assignment or transfer (or designation of a new Lending Office) an Irish Borrower would be obliged to make an increased payment to such assignor Lender under Section 3.01(a), then such assignee Lender shall be entitled to receive increased payments under Section 3.01(a) from such Irish Borrower to the same extent such assignor Lender would have been entitled to if the assignment or transfer (or designation of new Lending Office) had not occurred; (B) the applicable Irish Borrower shall be required to make increased payments under Section 3.01(a) to a Lender that is an assignee pursuant to a request by the applicable Borrower under Section 3.06, and (C) the applicable Irish Borrower shall be required to make increased payments to a Lender under Section 3.01(a) with respect to any Taxes arising as a result of an Irish Borrower failing to comply with its obligations under Section 3.01(e)(viii).
(vii) Upon request from an Irish Borrower, each Lender with respect to a Loan to an Irish Borrower shall promptly provide such information as shall be reasonably requested to enable such Irish Borrower to verify that such Lender is an Irish Qualifying Lender and to comply with the provisions of sections 891A and 891E of the TCA (or any regulations made in respect of or in connection with such sections).
(viii) Each Treaty Lender and each applicable Irish Borrower that makes a payment to which that Treaty Lender is entitled shall cooperate in completing any procedural formalities as may be necessary or advisable for such Irish Borrower to obtain authorization to make such payment without any Tax deduction imposed under the laws of Ireland.
Appears in 1 contract
Sources: 364 Day Term Loan and Guaranty Agreement (James Hardie Industries PLC)
Status of Lenders; Tax Documentation. (i) Any Lender Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and to the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent Agent, as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lendereach Lender (with respect to its Lending Office(s)) and the Administrative Agent, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, :
(i) shall deliver such other documentation or information prescribed by applicable law or laws reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers Administrative Borrower or the Administrative Agent to determine whether or not such Lender (with respect to its Lending Office(s)) is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lenderrequirements under applicable law.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,:
(A) any Lender Recipient that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender Recipient becomes a Lender under party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals of IRS Form W-9 (or any successor forms) certifying that such Lender is exempt from U.S. federal withholding and backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);tax; and
(B) any Foreign Lender shallRecipient that is not a U.S. Person shall (with respect to its Lending Office(s)), to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender Recipient becomes a Lender under party to this Agreement and on or before the date, if any, a Lender changes its Lending Office (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender any Recipient claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretosuccessor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretosuccessor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;treaty in each case together with such other documentation as is required by the Code in connection with the delivery of such form,
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors theretosuccessor forms), together with such other documentation as is required by the Code in connection with the delivery of such form;
(III) in the case of a Foreign Lender any Recipient claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Recipient is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Administrative Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretosuccessor forms); or,
(IV) to the extent a Foreign Lender any Recipient is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECIW-8ECI (or any successor forms), IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors theretosuccessor forms), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9W-9 (or any successor forms), and/or other required certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender Recipient is a partnership and one or more direct or indirect partners of such Foreign Lender Recipient are claiming the portfolio interest exemption, such Foreign Lender Recipient may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 I-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shallRecipient that is not a U.S. Person shall (with respect to its Lending Office(s)), to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender Recipient becomes a Lender under party to this Agreement and on or before the date, if any, a Lender changes its Lending Office (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable applicable: law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Administrative Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender Recipient shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers Administrative Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender Recipient has complied with such Lender's Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender Recipient agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and to the Administrative Agent, at the time or times prescribed by applicable law or when reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested by the Borrowers or the Administrative Agent information as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by as the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender is subject by or on behalf of any Loan Party pursuant to backup this Agreement or otherwise to establish such Lender’s status for withholding or information reporting requirements. Notwithstanding anything to the contrary tax purposes in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lenderapplicable jurisdiction.
(ii) Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in the event that any Borrower is a U.S. Person,United States:
(A) any Lender that is a U.S. Person “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);tax; and
(B) any each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case executed copies of a Foreign Lender IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, claiming the eligibility with respect to such payments for benefits of an income tax treaty to which the United States is a party party;
(x2) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treatyW-8ECI;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or section 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇I-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, ▇-▇(B) a “10 percent shareholder” of the Borrower within the meaning of section 871(h)(3)(B) of the Code, ▇-▇ or H-4 (each, C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); orW-8BEN-E;
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 I-2 or Exhibit H-3I-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 I-4 on behalf of each such direct and indirect partner;; or
(C5) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of executed copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal United States Federal withholding Tax, duly completed, tax together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and.
(Diii) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if If a payment made to a any Lender hereunder or under any other Loan Document would be subject to U.S. United States federal withholding Tax tax imposed by pursuant to FATCA if such Lender were to fail fails to comply with the applicable reporting and other requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent Agent, at the time or times prescribed by law and at such time applicable Law or times as reasonably requested by the Borrowers Borrower or the Administrative Agent Agent, such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such a Lender has complied with such Lender's its obligations under FATCA or to determine the amount amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (Diii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iiiiv) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly (A) notify the Borrowers Borrower and the Administrative Agent of any change in writing circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its legal inability Lending Office) to do soavoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in for so long as the event that any Borrower Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(Ia) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(IIb) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(IIIc) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IVd) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Administrative Agent or Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made hereunder or under any other Loan Document shall deliver to the Borrowers and (with a copy to the Administrative Agent), at the time or times prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Administrative Agent or Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such the Administrative Agent or Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(Athe immediately following clauses (ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below)) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in if the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed originals of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);Tax; and
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax Tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax Tax treaty;,
(II) an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of an executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);W-8ECI,
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇3.01-▇1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly executed (y) electronic copies (or originals if requested by any Borrower or the Administrative Agent) of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); W-8BEN-E, or
(IV) to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by any Borrower or the Administrative Agent) of an executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 3.01-2 or Exhibit H-33.01-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 3.01-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals an electronic copy (or an original if requested by the Borrower or the Administrative Agent) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law applicable Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Term Loan Agreement (Retail Opportunity Investments Partnership, LP)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers ▇▇▇▇▇ and the Administrative applicable Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative such Agent, such properly completed and executed documentation reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative such Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative applicable Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative such Agent as will enable the Borrowers ▇▇▇▇▇ or the Administrative such Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(ASections 3.01(g)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below)) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,:
(A) any Lender that is a U.S. Person shall deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers ▇▇▇▇▇ or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers ▇▇▇▇▇ or the Administrative Agent), whichever of the following is applicable:
(Iiii) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(IIiv) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(IIIv) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇J-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IVvi) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 J-2 or Exhibit H-3J-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that provided, that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 J-4 on behalf of each such direct and indirect partner;
(CA) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers ▇▇▇▇▇ and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers ▇▇▇▇▇ or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers ▇▇▇▇▇ or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(EB) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Ryder and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers ▇▇▇▇▇ or the Administrative Agent as may be necessary for the Borrowers ▇▇▇▇▇ and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (DSection 3.01(g)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iiivii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers ▇▇▇▇▇ and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Lead BorrowerBorrowers and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Lead BorrowerBorrowers or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Lead BorrowerBorrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Lead BorrowerBorrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Lead BorrowerBorrowers or the Administrative Agent as will enable the Borrowers Lead BorrowerBorrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Leadany Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Lead BorrowerBorrowers and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Lead BorrowerBorrowers or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Lead BorrowerBorrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Lead BorrowerBorrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers and the Administrative Agent, at the time or times prescribed by applicable law Laws or when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by taxing authorities of any jurisdiction and such other information reasonably requested by the Borrowers or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in for so long as the event that any Borrower Company is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)Tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such ActiveUS 170689984v.4 Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be ActiveUS 170689984v.4 prescribed by applicable law Law to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), ) an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of an executed originals of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of an executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇E-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E; or
(IV) to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of an executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 E-2 or Exhibit H-3E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 E-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) the Administrative Agent and any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which the Administrative Agent or such Lender becomes the Administrative Agent or a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. -83- federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECIW-SECT, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding with-holding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at -84- such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Ryder and the Administrative applicable Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Ryder or the Administrative such Agent, such properly completed and executed documentation reasonably requested by the Borrowers Ryder or the Administrative such Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Ryder or the Administrative applicable Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Ryder or the Administrative such Agent as will enable the Borrowers Ryder or the Administrative such Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(ASections 3.01(g)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below)) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. For the avoidance of doubt, this Section 3.01(g) shall not apply to U.K. Treaty Lenders (to which the provisions of Section 3.01(i)(vi) shall apply).
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,:
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Ryder and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Ryder or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Ryder and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Ryder or the Administrative Agent), whichever of the following is applicable:
(Iiii) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty treaty, and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(IIiv) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(IIIv) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇K-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IVvi) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 K-2 or Exhibit H-3K-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that provided, that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 K-4 on behalf of each such direct and indirect partner;
(CA) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Ryder and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Ryder or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Ryder or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(EB) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Ryder and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Ryder or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Ryder or the Administrative Agent as may be necessary for the Borrowers Ryder and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (DSection 3.01(g)(ii)(D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iiivii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Ryder and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D) and (ii)(E) below) shall not be required if in the Lender's reasonable judgment, as a result of a Change in Law, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
, (A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
Tax; (B) any Foreign Lender (or any successor Administrative Agent that is not a U.S. Person) shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement or on which such successor Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Internal Revenue Service Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Internal Revenue Service Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II) executed originals copies of IRS Internal Revenue Service Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
W- 8ECI, (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Internal Revenue Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of 48 CHAR1\2011656v6 Section 881(c)(3)(A) of the Internal Revenue Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (each, a “U.S. Tax Compliance Certificate”)) and (y) executed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable and duly executed originals of IRS Form W-8BEN (applicable; or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Internal Revenue Service Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Internal Revenue Service Form W-8ECI, IRS Internal Revenue Service Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Internal Revenue Service Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partner;
; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
and (D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it 49 CHAR1\2011656v6 shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Administrative Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Administrative Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of an executed originals of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of an executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of any such Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E; or
(IV) to the extent a Foreign Lender is not the beneficial owner, an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of an executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 G-2 or Exhibit H-3G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 G-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Administrative Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Administrative Borrower or the Administrative Agent), executed originals an electronic copy (or an original if requested by the Administrative Borrower or the Administrative Agent) of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Administrative Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Administrative Borrower or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Administrative Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers U.S. Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as will enable the Borrowers U.S. Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(ASections 5.01(e)(ii)(A), (ii)(B) (ii)(D5.01(e)(ii)(B) and (ii)(E5.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any a Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers U.S. Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers U.S. Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN; or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers U.S. Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers U.S. Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers U.S. Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers U.S. Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers U.S. Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 5.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers U.S. Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Company and to the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Company or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested by the Borrowers or the Administrative Agent information as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers a Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers such Borrower or the Administrative Agent as will enable the Borrowers such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) (ii)(D3.01(e)(ii)(B) and (ii)(E3.01(e)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to the Borrowers Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), ) executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);Tax; and
(B) any each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding Tax with respect to payments hereunder or under any other Loan Document shall deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(I) in the case of a Foreign Lender (or if the Foreign Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. Federal tax purposes) entitled to the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest hereunder or under any other Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments hereunder or under any other Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,
(II) executed copies of IRS Form W-8ECI,
(III) to the extent a Foreign Lender (or if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. federal tax purposes) is not the beneficial owner, executed copies of IRS Form W-8IMY and all required supporting documentation (including IRS Forms W-9 or W-9), or
(IV) in the case of a Foreign Lender (or if such Foreign Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. federal tax purposes) claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed copies of IRS Form W-8BEN or W-8BEN-E, or
(C) each Foreign Lender (or if such Lender is disregarded as an entity separate from its owner for U.S. federal tax purposes, the Person treated as its owner for U.S. federal tax purposes) shall, to the extent it is legally entitled to do so, deliver to the Borrowers Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit ▇-▇, ▇-▇, ▇-▇ or H-4 (each, a “U.S. Tax Compliance Certificate”), as applicable and duly executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto), accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto), a U.S. Tax Compliance Certificate in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Company or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Laws as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, Tax together with such supplementary documentation as may be prescribed by applicable law Laws to permit the Borrowers Company or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Company and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Company or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Company or the Administrative Agent as may be necessary for the Borrowers Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender ▇▇▇▇▇▇ has complied with such Lender's ▇▇▇▇▇▇’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementClosing Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Company and the Administrative Agent in writing of its legal inability to do so.
(iv) Each Borrower shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date (or such later date on which it first becomes a Borrower), and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction; provided, that the completion, execution and submission of any documentation by a Borrower pursuant to this Section 3.01(e)(iv) shall not be required if in such Borrower’s reasonable judgment such completion, execution or submission would subject such Borrower to any material unreimbursed cost or expense or would materially prejudice its legal or commercial position.
Appears in 1 contract
Sources: Third Amendment to Second Amended and Restated Credit Agreement (Methode Electronics Inc)
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A3.1(g)(ii)(A), (ii)(B) (ii)(Dg)(ii)(B) and (ii)(Eg)(ii)(D) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable Law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal Federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed by applicable Law or upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal Federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II2) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇F-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV4) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BEN-E (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 F-2 or Exhibit H-3F-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law Law as a basis for claiming exemption from or a reduction in U.S. federal Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law Law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law Law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(iii) . Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and (ii)(E) below) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any the Borrower is a U.S. Person,
(A) the Administrative Agent and any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which the Administrative Agent or such Lender becomes the Administrative Agent or a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto)tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) executed originals copies of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto)W-8ECI;
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals copies of IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals copies of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN W-8BENE (or any substantively comparable subsequent versions thereof or successors theretoW-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers Borrower or the Administrative Agent as may be necessary for the Borrowers Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's ’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this AgreementRestatement Effective Date.
(iii) Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
(iv) For purposes of determining withholding Taxes imposed under FATCA, from and after the Restatement Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders and L/C Issuers hereby authorize the Administrative Agent to treat) the Loan Documents and the Credit Extensions as not qualifying as "grandfathered obligations" within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).
Appears in 1 contract
Status of Lenders; Tax Documentation. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrowers Borrower and the Administrative Agent, at the time or times prescribed required by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or the taxing authorities of a jurisdiction pursuant to such applicable Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, at the time or times required by applicable Laws or if reasonably requested by the Borrowers Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law Laws or reasonably requested by the Borrowers Borrower or the Administrative Agent as will enable the Borrowers Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation either (A) set forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) and below or (ii)(EB) belowrequired by applicable Laws other than the Code or the taxing authorities of the jurisdiction pursuant to such applicable Laws to comply with the requirements for exemption or reduction of withholding tax in that jurisdiction) shall not be required if in the Lender's ’s reasonable judgment, as a result of a Change in Law, judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrowers Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax (or any substantively comparable subsequent versions thereof or successors thereto);
tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender 54 1006836498v2 becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), whichever of the following is applicable:
: (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto) W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
; (II) executed originals of IRS Form W-8ECI (or any substantively comparable subsequent versions thereof or successors thereto);
W-8ECI; (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” Code, (x) a statement certificate substantially in the form of Exhibit ▇-▇K-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, ▇-▇a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, ▇-▇ or H-4 a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (each, a “U.S. Tax Compliance Certificate”), as applicable ) and duly (y) executed originals of IRS Form W-8BEN (or any substantively comparable subsequent versions thereof W-8BEN-E, as applicable; or successors thereto); or
(IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY (or any substantively comparable subsequent versions thereof or successors thereto)W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN (or any substantively comparable subsequent versions thereof or successors thereto)W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 K-2 or Exhibit H-3K-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 K-4 on behalf of each such direct and indirect partner;
; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrowers Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrowers Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrowers Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
and (D) the Administrative Agent shall deliver to the Borrowers on or prior to the date on which the Administrative Agent becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the request of the Borrowers) two copies of IRS Form W-9 (or any substantively comparable subsequent versions thereof or successors thereto) certifying that the Administrative Agent is exempt from United States federal backup withholding tax and such other documentation as will enable the Borrowers to determine whether or not the Administrative Agent is subject to United States federal backup withholding tax or information reporting requirements; and
(E) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.55 1006836498v2
(iii) Each The Administrative Agent shall deliver to the Borrower on or prior to the date on which it becomes the Administrative Agent under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower), executed originals of IRS Form W-9 (and/or other applicable tax forms) certifying that the Administrative Agent is exempt from U.S. federal withholding tax.
(iv) The Administrative Agent and each Lender agrees agree that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrowers Borrower and the Administrative Agent in writing of its legal inability to do so.
Appears in 1 contract