Common use of Financial Assistance Clause in Contracts

Financial Assistance. (a) If and to the extent a Swiss Obligor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Obligor’s aggregate liability for Restricted Obligations shall not exceed the amount of the Swiss Obligor’s freely disposable equity (frei verfügbares Eigenkapital) at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the “Freely Disposable Amount”). (b) This limitation shall only apply to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations. (e) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to clause (a) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (iii) shall promptly notify the Administrative Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. (f) In the case of a deduction of Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties), and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documents.

Appears in 3 contracts

Samples: Lc Credit Agreement (Weatherford International PLC), Lc Credit Agreement and u.s. Security Agreement (Weatherford International PLC), Lc Credit Agreement (Weatherford International PLC)

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Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Obligor becomes liable Loan Party under this Agreement or any other Loan Document for obligations of any other Obligor (other than the such Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned direct or indirect subsidiaries of such Swiss Obligor) (would, at the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then applicable, such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss ObligorLoan Party’s aggregate liability profits and reserves available for Restricted Obligations shall not exceed distribution as dividends (being the amount balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times the relevant payment is requested from such Swiss Loan Party, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, without limitationin particular, any statutory reserves which can Section 2.17(d) shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisions herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Loan Party shall: (i) if and to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations.relevant time: (eA) If so required under subject to any applicable law double taxation treaty, deduct Swiss anticipatory tax (including tax treatiesVerrechnungssteuer) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction rate of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) (or such other rate as in force from time to time if the notification procedure pursuant to clause time) from any payment made by it in respect of Restricted Obligations; (aB) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted deduction to the Swiss Federal Tax Administration; and (iiiC) shall promptly notify (or ensure that the Company notifies) the Administrative Agent that such notification or, as the case may be, a deduction has been made, made and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration deduction has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (fc) In If and to the case of extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) to obtain a deduction of maximum benefit from the relevant Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment Loan Party’s liabilities under this Agreement or any other Agreement, each Swiss Loan DocumentParty undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, will, as soon as possible after such deductionincluding the following: (i) request a refund preparation of the an up-to-date audited balance sheet of such Swiss withholding tax under applicable law (including tax treaties), andLoan Party; (ii) pay confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in such measures would not have materially adverse tax consequences for such Swiss Loan Party or any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documentsits Affiliates.

Appears in 3 contracts

Samples: Credit Agreement (Capri Holdings LTD), Credit Agreement (Michael Kors Holdings LTD), Credit Agreement (Michael Kors Holdings LTD)

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Obligor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (’s own liabilities or liabilities of one of its Wholly-Owned Subsidiaries would, at the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then applicablesuch obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided, however, that such limited amount shall at no time be less than such Swiss Obligor’s aggregate liability profits and reserves available for Restricted Obligations shall not exceed distribution as dividends (being the amount balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times the relevant payment is requested from such Swiss Obligor; provided further that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Obligor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, without limitationin particular, any statutory reserves which can Sections 4.02(b) and 9.02 shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisions herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Obligor shall: (i) if and to the extent it is a requirement under required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Obligor is required Federal Tax Administration; and (C) notify the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations Federal Tax Administration, all in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this accordance with Section shall not apply 4.02(a) and Section 4.02(f); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 4.02(a) or indemnify the Swiss Obligor guarantees or otherwise secures Administrative Agent, each Lender and each Issuing Bank in accordance with Section 4.02(b) in relation to any amounts borrowed such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries laws of the Swiss ObligorSwitzerland then in force. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due and to the effects referred extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent, each Lender and each Issuing Bank to obtain a maximum benefit from the relevant Swiss Obligor’s liabilities under this Agreement, the each Swiss Obligor shall furtherundertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Obligor; (ii) confirmation of the auditors of such Swiss Obligor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of the relevant Swiss Obligor of the resulting profit distribution; and (iv) to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agentlaw, (i) write up or sell any of its the assets of the relevant Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The write up would not have materially adverse tax consequences for such Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitationsits Affiliates. (e) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to clause (a) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (iii) shall promptly notify the Administrative Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. (f) In the case of a deduction of Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties), and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documents.

Appears in 2 contracts

Samples: Credit Agreement (Weatherford International PLC), Credit Agreement (Weatherford International PLC)

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Obligor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (’s own liabilities or liabilities of one of its Wholly-Owned Subsidiaries would, at the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then applicablesuch obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided, however, that such limited amount shall at no time be less than such Swiss Obligor’s aggregate liability profits and reserves available for Restricted Obligations shall not exceed distribution as dividends (being the amount balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times the relevant payment is requested from such Swiss Obligor; provided further that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Obligor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, without limitationin particular, any statutory reserves which can Sections 4.02(b) and 9.02 shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisions herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Obligor shall: (i) if and to the extent it is a requirement under required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Obligor is required Federal Tax Administration; and (C) notify the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations Federal Tax Administration, all in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this accordance with Section shall not apply 4.02(a) and Section 4.02(f); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 4.02(a) or indemnify the Swiss Obligor guarantees or otherwise secures Administrative Agent and each Lender in accordance with Section 4.02(b) in relation to any amounts borrowed such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries laws of the Swiss ObligorSwitzerland then in force. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due and to the effects referred extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent and each Lender to obtain a maximum benefit from the relevant Swiss Obligor’s liabilities under this Agreement, the each Swiss Obligor shall furtherundertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Obligor; (ii) confirmation of the auditors of such Swiss Obligor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of the relevant Swiss Obligor of the resulting profit distribution; and (iv) to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agentlaw, (i) write up or sell any of its the assets of the relevant Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The write up would not have materially adverse tax consequences for such Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitationsits Affiliates. (e) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to clause (a) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (iii) shall promptly notify the Administrative Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. (f) In the case of a deduction of Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties), and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documents.

Appears in 1 contract

Samples: 364 Day Revolving Credit Agreement (Weatherford International PLC)

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Obligor becomes liable Loan Party under this Agreement or any other Loan Document for obligations of any other Obligor (other than the such Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned direct or indirect subsidiaries of such Swiss Obligor) (would, at the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then applicable, such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss ObligorLoan Party’s aggregate liability profits and reserves available for Restricted Obligations shall not exceed distribution as dividends (being the amount balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times the relevant payment is requested from such Swiss Loan Party, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, without limitationin particular, any statutory reserves which can Section 2.17(d) shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisions herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Loan Party shall: (i) if and to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations.relevant time: (eA) If so required under subject to any applicable law double taxation treaty, deduct Swiss anticipatory tax (including tax treatiesVerrechnungssteuer) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction rate of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) (or such other rate as in force from time to time if the notification procedure pursuant to clause time) from any payment made by it in respect of Restricted Obligations; (aB) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted deduction to the Swiss Federal Tax Administration; and (iiiC) shall promptly notify (or ensure that the Company notifies) the Administrative Agent that such notification or, as the case may be, a deduction has been made, made and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration deduction has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the Secured Parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (fc) In If and to the case of extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other Secured Parties) to obtain a deduction of maximum benefit from the relevant Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment Loan Party’s liabilities under this Agreement or any other Agreement, each Swiss Loan DocumentParty undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, will, as soon as possible after such deductionincluding the following: (i) request a refund preparation of the an up-to-date audited balance sheet of such Swiss withholding tax under applicable law (including tax treaties), andLoan Party; (ii) pay confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in such measures would not have materially adverse tax consequences for such Swiss Loan Party or any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documentsits Affiliates.

Appears in 1 contract

Samples: Credit Agreement (Michael Kors Holdings LTD)

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Obligor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (’s own liabilities or liabilities of one of its Wholly-Owned Subsidiaries would, at the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then applicablesuch obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided, however, that such limited amount shall at no time be less than such Swiss Obligor’s aggregate liability profits and reserves available for Restricted Obligations shall not exceed distribution as dividends (being the amount balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times the relevant payment is requested from such Swiss Obligor; provided further that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Obligor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, without limitationin particular, any statutory reserves which can Sections 4.02(b) and 9.02 shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisions herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Obligor shall: (i) if and to the extent it is a requirement under required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Obligor is required Federal Tax Administration; and (C) notify the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations Federal Tax Administration, all in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this accordance with Section shall not apply 4.02(a) and Section 4.02(f); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 4.02(a) or indemnify the Swiss Obligor guarantees or otherwise secures Administrative Agent and each Lender in accordance with Section 4.02(b) in relation to any amounts borrowed such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries laws of the Swiss Obligor.Switzerland then in force. ACTIVE 214387177 (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due and to the effects referred extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent and each Lender to obtain a maximum benefit from the relevant Swiss Obligor’s liabilities under this Agreement, the each Swiss Obligor shall furtherundertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Obligor; (ii) confirmation of the auditors of such Swiss Obligor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of the relevant Swiss Obligor of the resulting profit distribution; and (iv) to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agentlaw, (i) write up or sell any of its the assets of the relevant Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The write up would not have materially adverse tax consequences for such Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitationsits Affiliates. (e) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to clause (a) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (iii) shall promptly notify the Administrative Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. (f) In the case of a deduction of Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties), and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documents.

Appears in 1 contract

Samples: Term Loan Agreement (Weatherford International PLC)

Financial Assistance. (a) If and to the extent a Swiss Obligor Guarantor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss ObligorGuarantor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor Guarantor or would otherwise be restricted under Swiss law and practice then applicable, such Swiss ObligorGuarantor’s aggregate liability for Restricted Obligations shall not exceed the amount of the Swiss ObligorGuarantor’s freely disposable equity (frei verfügbares Eigenkapital) at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the “Freely Disposable Amount”). (b) This limitation shall only apply to the extent it is a requirement under applicable law at the time the Swiss Obligor Guarantor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor Guarantor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor Guarantor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor Guarantor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor Guarantor or to wholly owned direct or indirect subsidiaries of the Swiss ObligorGuarantor. (c) If the enforcement of the obligations of the Swiss Obligor Guarantor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor Guarantor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss ObligorGuarantor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor Guarantor and any direct holding company of the Swiss Obligor Guarantor which is a party to a Loan Document shall procure that the Swiss Obligor Guarantor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor Guarantor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor Guarantor that a payment of the Swiss Obligor Guarantor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations. (e) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss ObligorGuarantor: (i) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to clause sub-paragraph (a) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause sub-paragraph (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (iii) shall promptly notify the Administrative Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. (f) In the case of a deduction of Swiss withholding tax, the Swiss Obligor Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties), and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor Guarantor to secure such refund. (hi) To the extent the Swiss Obligor Guarantor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor Guarantor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, Amount and (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss ObligorGuarantor, subject to any right of set-off of such Credit Party pursuant to the Loan Documents.

Appears in 1 contract

Samples: Senior Secured Debtor in Possession Credit Agreement (Weatherford International PLC)

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Financial Assistance. (a) If and to the extent that a Swiss Obligor becomes liable payment in fulfilling the guarantee obligations under this Agreement Guarantee of MK Switzerland or any other Loan Document for obligations Guarantor organized under the laws of any other Obligor Switzerland (other than the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (collectively with MK Switzerland, the “Restricted ObligationsSwiss Guarantors”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)would, a violation of at the legally protected reserves (gesetzlich geschützte Reserven) or the time payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted is due, under Swiss law and practice then applicable(inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted, in particular if and to the extent that such Swiss Obligor’s aggregate liability for Guarantor guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations of its direct or indirect parent companies (up-stream guarantee) or sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations Obligations”), then such obligations and payment amount shall not exceed from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Guarantor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with art. 675(2) and art. 671(1) and (2), no. 3, of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times payment under or pursuant to this Guarantee is requested from such Swiss Guarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Finance Documents including, without limitationin particular, any statutory reserves which can Section 2.15(c) of the Credit Agreement shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisos herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Guarantor shall: (i) if and to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the relevant time: A. subject to any applicable double taxation treaty, deduct Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations. anticipatory tax (e) If so required under applicable law (including tax treatiesVerrechnungssteuer; “Swiss Withholding Tax”) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction rate of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) (or such other rate as in force from time to time if the notification procedure pursuant to clause (atime) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge from any payment made by it in respect of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall Restricted Obligations; B. pay within the time allowed any such taxes deducted deduction to the Swiss Federal Tax Administration; and C. notify (iiior ensure that the Company notifies) shall promptly notify the Administrative Agent that such notification or, as the case may be, a deduction has been made, made and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration deduction has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.15(a) of the Credit Agreement; and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.15(a) of the Credit Agreement or indemnify the Secured Parties in accordance with Section 2.15(c) of the Credit Agreement in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (fc) In If and to the case extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Agents (or the other Secured Parties) to obtain a maximum benefit under the guarantee obligations of a deduction this Guarantee, each Swiss Guarantor undertakes to promptly implement all such measures and/or to promptly obtain the fulfilment of Swiss withholding taxall prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deductionfollowing: (i) request a refund preparation of the an up-to-date audited balance sheet of such Swiss withholding tax under applicable law (including tax treaties), andGuarantor; (ii) pay to confirmation of the Administrative Agent upon receipt any auditors of such Swiss Guarantor that the relevant amount so refunded.represents the maximum freely distributable profits; (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If approval by a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off quotaholders’ meeting of such Credit Party pursuant Swiss Guarantor of the resulting profit distribution; and (iv) all such other measures necessary or useful to allow such Swiss Guarantor to make the Loan Documentspayments agreed hereunder with a minimum of limitations.

Appears in 1 contract

Samples: Credit Agreement (Michael Kors Holdings LTD)

Financial Assistance. (a) If and to the extent that a Swiss Obligor becomes liable payment in fulfilling the joint and several liabilities under this Agreement or any other Loan Document for obligations Section 2.10(f) of any other Obligor (other than Swiss Borrower would, at the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice then applicable(inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted, in particular if and to the extent that such Swiss Obligor’s aggregate liability for Borrower guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations of its direct or indirect parent companies (up-stream guarantee) or direct or indirect sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations Obligations”), then such obligations and payment amount shall not exceed from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Borrower’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with art. 798, of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times payment under or pursuant to Section 2.10(f) is requested from such Swiss Borrower, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Borrower from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Finance Documents including, without limitationin particular, any statutory reserves which can Section 2.17(d) shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisos herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Borrower shall: (i) if and to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations.relevant time: (eA) If so required under subject to any applicable law double taxation treaty, deduct Swiss anticipatory tax (including tax treatiesVerrechnungssteuer; “Swiss Withholding Tax”) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction rate of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) (or such other rate as in force from time to time if the notification procedure pursuant to clause time) from any payment made by it in respect of Restricted Obligations; (aB) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted deduction to the Swiss Federal Tax Administration; and (iiiC) shall promptly notify (or ensure that the Company notifies) the Administrative Agent that such notification or, as the case may be, a deduction has been made, made and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration deduction has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the Secured Parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (fc) In If and to the case extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other Secured Parties) to obtain a maximum benefit under the joint and several liabilities under Section 2.10(f), each Swiss Borrower undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of a deduction of Swiss withholding taxall prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deductionfollowing: (i) request a refund preparation of the an up-to-date audited balance sheet of such Swiss withholding tax under applicable law (including tax treaties), andBorrower; (ii) pay confirmation of the auditors of such Swiss Borrower that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Borrower of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Borrower to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in such measures would not have materially adverse tax consequences for such Swiss Borrower or any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documentsits Affiliates.

Appears in 1 contract

Samples: Credit Agreement (Michael Kors Holdings LTD)

Financial Assistance. (a) If and to the extent that a Swiss Obligor becomes liable payment in fulfilling the joint and several liabilities under this Agreement or any other Loan Document for obligations Section 2.08(f) of any other Obligor (other than Swiss Borrower would, at the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)time payment is due, a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice then applicable(inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted, in particular if and to the extent that such Swiss Obligor’s aggregate liability for Borrower guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations of its direct or indirect parent companies (up-stream guarantee) or sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations Obligations”), then such obligations and payment amount shall not exceed from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Borrower’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with art. 675(2) and art. 671(1) and (2), no. 3, of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable or times payment under or pursuant to Section 2.08(f) is requested from such Swiss Borrower, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Borrower from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Finance Documents including, without limitationin particular, any statutory reserves which can Section 2.15(c) shall be transferred into unrestricted, distributable reserves, construed in accordance a manner consistent with Swiss law (the “Freely Disposable Amount”)provisos herein contained. (b) This limitation shall only apply In respect of Restricted Obligations, each Swiss Borrower shall: (i) if and to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not free the Swiss Obligor from its obligations in excess of the Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Obligor has again freely disposable equity. The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations.relevant time: (eA) If so required under subject to any applicable law double taxation treaty, deduct Swiss anticipatory tax (including tax treatiesVerrechnungssteuer; “Swiss Withholding Tax”) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction rate of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) (or such other rate as in force from time to time if the notification procedure pursuant to clause time) from any payment made by it in respect of Restricted Obligations; (aB) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted deduction to the Swiss Federal Tax Administration; and (iiiC) shall promptly notify (or ensure that the Company notifies) the Administrative Agent that such notification or, as the case may be, a deduction has been made, made and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration deduction has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.15(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.15(a) or indemnify the Secured Parties in accordance with Section 2.15(c) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (fc) In If and to the case extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Agents (or the other Secured Parties) to obtain a maximum benefit under the joint and several liabilities under Section 2.08(f), each Swiss Borrower undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of a deduction of Swiss withholding taxall prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deductionfollowing: (i) request a refund preparation of the an up-to-date audited balance sheet of such Swiss withholding tax under applicable law (including tax treaties), andBorrower; (ii) pay to confirmation of the Administrative Agent upon receipt any auditors of such Swiss Borrower that the relevant amount so refunded.represents the maximum freely distributable profits; (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If approval by a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off quotaholders’ meeting of such Credit Party pursuant Swiss Borrower of the resulting profit distribution; and (iv) all such other measures necessary or useful to allow such Swiss Borrower to make the Loan Documentspayments agreed hereunder with a minimum of limitations.

Appears in 1 contract

Samples: Credit Agreement (Michael Kors Holdings LTD)

Financial Assistance. (a) This Guarantee does not apply to any liability to the extent that it would result in this Guarantee constituting unlawful financial assistance within the meaning of Section 677 of the Companies Xxx 0000 or any equivalent provision of any applicable law. (b) If and to the extent that a Swiss Obligor becomes liable payment in fulfilling the guarantee obligations under this Agreement Guarantee of MK Switzerland or any other Loan Document for obligations Guarantor organized under the laws of any other Obligor Switzerland (other than the wholly owned direct or indirect subsidiaries of such Swiss Obligor) (collectively with MK Switzerland, the “Restricted ObligationsSwiss Guarantors”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr)would, a violation of at the legally protected reserves (gesetzlich geschützte Reserven) or the time payment of a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted is due, under Swiss law and practice then applicable(inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted, in particular if and to the extent that such Swiss Obligor’s aggregate liability for Guarantor guarantees obligations other than obligations of one of its subsidiaries (i.e., obligations of its direct or indirect parent companies (up-stream guarantee) or direct or indirect sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations Obligations”), then such obligations and payment amount shall not exceed from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Guarantor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Obligor’s freely disposable equity (frei verfügbares EigenkapitalFederal Code of Obligations) at the time it becomes liable includingor times payment under or pursuant to this Guarantee is requested from such Swiss Guarantor, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law and further provided that such limitation (the “Freely Disposable Amount”). (bas may apply from time to time or not) This limitation shall only apply to the extent it is a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not (generally or definitively) free the such Swiss Obligor Guarantor from its payment obligations hereunder in excess of the Freely Disposable Amountthereof, but merely postpone the performance payment date thereof therefor until such times when the Swiss Obligor has as payment is again freely disposable equitypermitted notwithstanding such limitation. The limitation set out Any and all indemnities and guarantees contained in this Section shall not apply to the extent the Swiss Obligor guarantees or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to including, in this Agreementparticular, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative Agent, (iSection 2.17(d) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, Credit Agreement shall be construed in case of sale, however, only if such assets are not necessary for the Swiss Obligor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in an amount corresponding to the Freely Disposable Amount is in compliance manner consistent with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Obligor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitationsprovisos herein contained. (e) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss Obligor: (i) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (ii) shall deduct the Swiss withholding tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to clause (a) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to clause (a) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (iii) shall promptly notify the Administrative Agent that such notification or, as the case may be, deduction has been made, and provide the Administrative Agent with evidence that such a notification of the Swiss Federal Tax Administration has been made or, as the case may be, such taxes deducted have been paid to the Swiss Federal Tax Administration. (f) In the case of a deduction of Swiss withholding tax, the Swiss Obligor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties), and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such gross up is permitted under the applicable law, and (iii) such steps are permitted under the Loan Documents. If a refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Credit Party pursuant to the Loan Documents.

Appears in 1 contract

Samples: Credit Agreement (Michael Kors Holdings LTD)

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