Decision of the European Central Bank of 14 November 2008 on the implementation of Regulation ECB/2008/11 of 23 October 2008 on temporary changes to the rules relating to eligibility of collateral (ECB/2008/15) (2008/874/EC)

Article 13 Taxation and Indemnity

1. A syndicated loan shall only be eligible collateral for Eurosystem credit operations if the counterparty fulfils the conditions set out in this Article.

2. The counterparty shall provide confirmation from UK tax counsel to the effect that either: (a) the debtor will not be required to retain UK withholding tax as a result of any transfer, under either English or any other law, of the beneficial ownership of the loan asset to the NCB; or (b) the debtor will be required to retain UK withholding tax as a result of such transfer of beneficial ownership to the NCB, but that the NCB should be eligible to benefit from the tax treaty between the UK and the jurisdiction of the NCB, such that once a direction has been issued by Her Majesty’s Revenue & Customs (HMRC) under the relevant treaty, the debtor will be entitled to make interest payments to the NCB without withholding UK tax and the NCB will be entitled to recover tax previously withheld; or (c) the debtor will be required to retain UK withholding tax as a result of such transfer of beneficial ownership to the NCB and the NCB will not be eligible to benefit from the tax treaty between the UK and the NCB’s jurisdiction or any other exemption.

3. Where UK tax counsel confirms that the transfer of beneficial ownership of the loan asset to the NCB falls under either category (b) or (c) in paragraph 2 above, the counterparty will be required to agree to indemnify the NCB for any UK withholding tax that is withheld by the debtor (and not grossed up pursuant to the syndicated loan agreement), and for all adverse cash-flow consequences of any UK withholding tax that is first retained from, and then refunded to, the NCB.

4. The counterparty shall assume any and all responsibility for notifying the debtor of any transfer of the beneficial ownership of the loan asset to the NCB that results in the debtor being required to withhold UK tax (or to withhold UK tax at a different rate).

5. The counterparty shall bear the full cost of any UK stamp duty (as well as any penalty and interest thereon) that is payable as a result of any transfer, under either English or any other law, of the beneficial ownership of the loan asset, and that the NCB reasonably considers has to be paid in order for the NCB to be able to adduce the loan asset as evidence in an English court or use the loan asset for some other purpose in the UK. The counterparty shall also bear the full cost of any UK stamp duty reserve tax payable as a result of any such transfer, if applicable.

6. The counterparty shall provide confirmation from appropriate tax counsel in such jurisdictions that the counterparty considers applicable, to the effect that the debtor will not be required to retain non-UK withholding tax as a result of any transfer, under either English or any other law, of the beneficial ownership of the loan asset to the NCB, and that any such transfer will not trigger liability to any non-UK stamp or transfer duty.

7. The counterparty shall fully indemnify the relevant NCB in respect of any fees due to the facility or paying agent, or any other fees or costs related to the administration of the loan.