FOREIGN ACCOUNT TAX COMPLIANCE ACT
FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) - Under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended, (the "Code"), or any amended or successor version that is substantively comparable, any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code (collectively, "FATCA"), U.S. financial institutions (“USFI”), including our institution, and other types of U.S. withholding agents are required to withhold thirty percent (30%) on certain U.S. source payments made to foreign entities, including foreign financial institutions (“FFIs”), if they are unable to document such entities' status for purposes of FATCA. USFIs and U.S. withholding agents must also report to the IRS information about certain non-financial foreign entities with substantial U.S. owners. In light of the foregoing, you hereby represent, warrant, acknowledge and agree as follows.
a. FATCA; General Exculpation of Liability. You hereby acknowledge and agree that if a payment made to you by us in connection with an account, this Agreement, or any products or services provided by us to you would be subject to U.S. federal withholding tax imposed by FATCA, you shall deliver to us at the time or times prescribed by law and at such time or times requested by us, such documentation requested by us as may be necessary for us to comply with our obligations under FATCA to determine that you have complied your obligations under FATCA or to determine the amount to deduct and withhold from such payment. In accordance with the terms of this Agreement, our institution, its affiliates and each of their respective directors, officers, employees, attorneys, and agents (collectively, the "Exculpated Parties"), shall not at any time incur any liability to you and you hereby expressly waive and release any and all claims and causes of action which you may at any time have against any Exculpated Party in connection with any acts, omissions, or circumstances at any time or times arising out of or relating to any of our obligations with respect to FATCA, including, as applicable, reporting of information or withholding on any payments received or originated by you.
b.Customer Obligations: You are in the best position to determine your U.S. or foreign status, FATCA Chapter 4 status (as such term is defined in FATCA) and the status of your payees in connection with your account (each, as applicable, "FATCA status"). Accordingly, you hereby agree to provide us with such documentation or information we may request or deem necessary (in our sole discretion) from time to time to comply with our obligations under FATCA, including, but not limited to, any one or more of the following:
I. A true and correct withholding certificate (e.g., W-8BEN, W-8BEN-E, W-9, etc.) for your account(s) or the payee;
II.With respect to an account held by or payee that is an FFI, a true and correct withholding certificate that identifies the FFI as a participating FFI (“PFFI”), deemed-compliant FFI, registered deemed-compliant FFI, certified deemed-compliant FFI or such other FATCA classification applicable to such FFI;
III.With respect to an account held by or payee that is an FFI required to obtain a Global Intermediary Identification Number (“GIIN”), documentary evidence that the FFI has registered with the IRS and obtained a valid GIIN;
IV. With respect to an account held by or payee that is a non-financial foreign entity (“NFFE”) or an exempt beneficial owner, a true and correct withholding certificate identifying the account holder or payee as an excepted NFFE, passive NFFE or an exempt beneficial owner. Examples of excepted NFFEs, include, but are not limited to: publicly traded companies, affiliates of publicly traded companies, non-profits, and active NFFE (means a foreign business whose passive income is less than 50% of gross income). Examples of exempt beneficial owners, include, but are not limited to: any foreign government, any political subdivision of a foreign government, or any wholly owned agency or instrumentality of any one or more of the foregoing; foreign central bank of issue (e.g., such banks are generally the custodian of the banking reserves of the country, Bank for International Settlements, etc.); Governments of U.S. Territories; and certain retirement funds;
V. Any other written documentation or certification reflecting the nature of payment (i.e., showing it is not a withholdable payment under FATCA) or the FATCA status of the payee consistent with the provisions of the Code and/or regulations promulgated under FATCA;
VI. Documentary evidence regarding the nature of the payment as not U.S. source FDAP or U.S. source gross proceeds, as those terms are defined in FATCA;
VII. A certificate of residence issued by an appropriate tax official of the foreign country claimed by you or the payee as the country of residence that indicates that such party has filed its most recent income tax return as a resident of that country;
VIII. With respect to an individual, valid identification issued by an authorized government body (for example, a government or agency thereof, or a municipality), that is typically used for identification purposes;
IX. With respect to an account maintained in a jurisdiction with anti-money laundering rules that have been approved by the IRS in connection with a Qualified Intermediary agreement (a "QI Agreement"), any of the documents other than a withholding certificate referenced in the jurisdiction's attachment to the QI agreement for identifying individuals or entities;
X. With respect to an entity, any official documentation issued by an authorized government body (for example, a government or agency thereof, or a municipality);
XI. For a payment made with respect to an offshore obligation to an individual, a third-party credit report;
XII. With respect to an entity other than a participating FFI or registered deemed-compliant FFI, any organizational document (such as articles of incorporation or a trust agreement), financial statement, third-party credit report, letter from a government agency, or statement from a government Web site, agency, or registrar (such as an SEC report) depending on the FATCA status of the entity; or
XIII. A letter from an auditor or attorney with a location in the United States that is not related to the withholding agent or payee and is subject to the authority of a regulatory body that governs the auditor's or attorney's review of the FATCA status of the payee, any bankruptcy filing, corporate resolution, copy of a stock market index or other document depending on the FATCA status of the payee.
c.Due Diligence Obligations. In the event we establish an account for a foreign legal entity, we shall perform due diligence in order to determine if any substantial U.S. ownership exists. Further, we may ask you questions with respect to your U.S. tax payer status and will require you to complete a W-9 or W-8, as applicable. In addition, we will inquire as to the nature of your payments (foreign and domestic), the payee, and/or the status of the foreign beneficiary bank/financial institution in order to comply with our obligations under FATCA.
d.FATCA Withholding Obligation. In the event that we are unable to determine that a payment made to or from your account is subject to withholding under FATCA or you have not met your obligations as summarized above, you hereby acknowledge and agree that we may, in our sole discretion, withhold thirty percent (30%) of the gross amount of such payment.
e. Reporting. We, as a USFI, must report to the IRS information about certain non-financial foreign entities with substantial U.S. owners and payments made to nonparticipating FFIs.
f.Change in Circumstances. For purposes of FATCA your are considered to have a “change in circumstances” only if such change results in the addition of information (i.e., U.S. indicia that is not otherwise cured by documentation on file and that is relevant to your FATCA status claimed) relevant to a person's claim of foreign status or otherwise conflicts with such person's status under FATCA.
A change in circumstances affecting the withholding information provided to us, will terminate the validity of the withholding certificate (i.e., W-8 or W-9) with respect to the information that is no longer reliable, until the information is updated. Accordingly, you have an obligation to notify us of a change in circumstances. If a change in circumstances makes any information on a withholding certificate or other documentation incorrect, then the person whose name is on the withholding certificate or other documentation must inform us (the withholding agent) within thirty (30) days of the change and furnish a new withholding certificate, as may be deemed necessary, and, as applicable, provide new documentary evidence to document the validity of a claimed exemption where U.S. indicia is reflected.
The foregoing amendments, modifications and/or supplements to the Agreement shall take effect immediately.
In the absence of the provision of the information/documentation summarized above (i.e., U.S. or foreign status, FATCA status and the status of your payees in connection with your FATCA status), we may be required under FATCA to withhold thirty percent (30%) on payments to or from your account(s).