|
|
 | | | |
- close
- close
- close
- close
This excerpt taken from the AYR 8-K filed May 5, 2008. Other
Taxes”).
(c) The
Borrowers agree, jointly and severally, to indemnify each Lender and the
Facility Agent for the full amount of Indemnified Taxes and Other Taxes
(including, without limitation, any Indemnified Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 4.6)
paid by such Lender or the Facility Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each
Lender, on or prior to the date of its execution and delivery of this Agreement
in the case of each Lender listed on the signature pages hereof and on or prior
to the date on which it becomes a Lender in the case of each other Lender, and
from time to time thereafter if requested in writing by any Borrower or the
Facility Agent (but only so long as legally able to do so), shall provide the
Borrowers and the Facility Agent with (i) a complete and properly executed
Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (including
all
16
required
accompanying information), as appropriate, or any successor form prescribed by
the Internal Revenue Service (including a United States taxpayer identification
number), certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest, certifying that the Lender is eligible
for the “portfolio interest exemption” or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States or (ii) Internal Revenue Service
Form W-9 or any successor form prescribed by the Internal Revenue
Service. In addition, each Lender and the Facility Agent agrees that
it will (i) take all actions reasonably requested by a Borrower in writing
that are consistent with applicable legal and regulatory restrictions to claim
any available reductions or exemptions from Indemnified Taxes or Other
Taxes and (ii) otherwise cooperate with the Borrowers to
minimize any amounts payable by the Borrowers under this Section 4.6;
provided, however, that in each case,
any out-of-pocket cost relating to such action or cooperation requested by a
Borrower shall be borne by such Borrower and no Lender shall be required to take
any action that it determines in its sole good faith discretion, may be adverse
in any non-de minimis
respect to it and not indemnified to its satisfaction. Each Lender
listed on the signature page hereto represents that it is a Qualifying Lender as
of the Closing Date and each Payment Date thereafter and each Lender and
assignee represents that any Person to whom it sells as participation in all or
a portion of its rights under this Agreement is a Qualifying Lender as of the
date of such sale and on each Payment Date thereafter, and each assignee
represents that it is a Qualifying Lender as of the date such party becomes an
assignee and on each Payment Date thereafter, unless a Lender, assignee or
participant is precluded from being a Qualifying Lender by reason of a change in
treaty, law or resolution (or interpretation thereof) occurring, in the case of
a Lender listed on the signature page hereto, after the Closing Date, or in the
case of an assignee or participant, after the effective date of the assignment
or sale of the participation.
(e) A
Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which a Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the
Facility Agent), at the time or times prescribed by applicable law or reasonably
requested by such Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender’s judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f)
If any Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.6,
then such Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the sole
judgment of such Lender, is not otherwise disadvantageous to such
Lender.
(g) Within
thirty (30) days after the date of any payment of Taxes, the applicable
Borrower shall furnish to the Facility Agent the original or a certified copy of
a receipt evidencing such payment or otherwise evidence of such payment as is
reasonably acceptable to the Facility Agent.
17
(h)
If the Facility Agent or any Lender receives a refund of any
Taxes or Other Taxes as to which it has been indemnified by a Borrower or with
respect to which a Borrower has paid additional amounts pursuant to this Section 4.6, it
shall pay over such refund to such Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by a Borrower under this Section 4.6 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses (including any net increase in Taxes imposed on such
Person by reason of such refund and the payment by such Person pursuant to this
sentence) of the Facility Agent or such Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund); provided, that
the Borrower, upon the request of the Facility Agent or such Lender, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Facility
Agent or such Lender in the event the Facility Agent or such Lender is required
to repay such refund to such Governmental Authority. This paragraph
shall not be construed to require the Facility Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Borrower or any other Person.
(i)
Without prejudice to the survival of any other agreement of any Borrower
hereunder, the agreements and obligations of each Borrower contained in this
Section 4.6
shall survive the payment in full of the Loans.
4.7. Directed Sale. If a Lender
requests payment or indemnification pursuant to Sections 4.1, 4.4, 4.5, 4.6 of
this Agreement, or if the Reserve Requirement for any Lender at anytime is
greater than 0, the Borrower may require, within 75 days from such Lender’s
request, that such Lender (the “ This excerpt taken from the AYR 8-K filed May 5, 2008. Other
Taxes”).
(c) The
Borrowers agree, jointly and severally, to indemnify each Lender and the
Facility Agent for the full amount of Indemnified Taxes and Other Taxes
(including, without limitation, any Indemnified Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section 4.6)
paid by such Lender or the Facility Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each
Lender, on or prior to the date of its execution and delivery of this Agreement
in the case of each Lender listed on the signature pages hereof and on or prior
to the date on which it becomes a Lender in the case of each other Lender, and
from time to time thereafter if requested in writing by any Borrower or the
Facility Agent (but only so long as legally able to do so), shall provide the
Borrowers and the Facility Agent with (i) a complete and properly executed
Internal Revenue Service Form W-8BEN, W-8ECI or W-8IMY (including
all
16
required
accompanying information), as appropriate, or any successor form prescribed by
the Internal Revenue Service (including a United States taxpayer identification
number), certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest, certifying that the Lender is eligible
for the “portfolio interest exemption” or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States or (ii) Internal Revenue Service
Form W-9 or any successor form prescribed by the Internal Revenue
Service. In addition, each Lender and the Facility Agent agrees that
it will (i) take all actions reasonably requested by a Borrower in writing
that are consistent with applicable legal and regulatory restrictions to claim
any available reductions or exemptions from Indemnified Taxes or Other
Taxes and (ii) otherwise cooperate with the Borrowers to
minimize any amounts payable by the Borrowers under this Section 4.6;
provided, however, that in each case,
any out-of-pocket cost relating to such action or cooperation requested by a
Borrower shall be borne by such Borrower and no Lender shall be required to take
any action that it determines in its sole good faith discretion, may be adverse
in any non-de minimis
respect to it and not indemnified to its satisfaction. Each Lender
listed on the signature page hereto represents that it is a Qualifying Lender as
of the Closing Date and each Payment Date thereafter and each Lender and
assignee represents that any Person to whom it sells as participation in all or
a portion of its rights under this Agreement is a Qualifying Lender as of the
date of such sale and on each Payment Date thereafter, and each assignee
represents that it is a Qualifying Lender as of the date such party becomes an
assignee and on each Payment Date thereafter, unless a Lender, assignee or
participant is precluded from being a Qualifying Lender by reason of a change in
treaty, law or resolution (or interpretation thereof) occurring, in the case of
a Lender listed on the signature page hereto, after the Closing Date, or in the
case of an assignee or participant, after the effective date of the assignment
or sale of the participation.
(e) A
Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which a Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the
Facility Agent), at the time or times prescribed by applicable law or reasonably
requested by such Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender’s judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f)
If any Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.6,
then such Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the sole
judgment of such Lender, is not otherwise disadvantageous to such
Lender.
(g) Within
thirty (30) days after the date of any payment of Taxes, the applicable
Borrower shall furnish to the Facility Agent the original or a certified copy of
a receipt evidencing such payment or otherwise evidence of such payment as is
reasonably acceptable to the Facility Agent.
17
(h)
If the Facility Agent or any Lender receives a refund of any
Taxes or Other Taxes as to which it has been indemnified by a Borrower or with
respect to which a Borrower has paid additional amounts pursuant to this Section 4.6, it
shall pay over such refund to such Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by a Borrower under this Section 4.6 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses (including any net increase in Taxes imposed on such
Person by reason of such refund and the payment by such Person pursuant to this
sentence) of the Facility Agent or such Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund); provided, that
the Borrower, upon the request of the Facility Agent or such Lender, agrees to
repay the amount paid over to such Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the Facility
Agent or such Lender in the event the Facility Agent or such Lender is required
to repay such refund to such Governmental Authority. This paragraph
shall not be construed to require the Facility Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Borrower or any other Person.
(i)
Without prejudice to the survival of any other agreement of any Borrower
hereunder, the agreements and obligations of each Borrower contained in this
Section 4.6
shall survive the payment in full of the Loans.
4.7. Directed Sale. If a Lender
requests payment or indemnification pursuant to Sections 4.1, 4.4, 4.5, 4.6 of
this Agreement, or if the Reserve Requirement for any Lender at anytime is
greater than 0, the Borrower may require, within 75 days from such Lender’s
request, that such Lender (the “ | EXCERPTS ON THIS PAGE:
RELATED TOPICS for AYR: |
| |||||||
