Swiss Limitations Clause Samples

Swiss Limitations. Notwithstanding any other provision of this Clause 21 (Guarantee and Indemnity) the guarantee, indemnity and other obligations of any Swiss Obligor expressed to be assumed in this Agreement shall be limited as follows: (a) If and to the extent that (i) a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), for obligations of its Affiliates (other than obligations of its direct or indirect wholly owned Subsidiaries) or otherwise obliged to grant economic benefits to its Affiliates (other than its direct or indirect wholly owned Subsidiaries), including, for the avoidance of doubt, the granting of any security by the Swiss Obligor or any restrictions of the Swiss Obligor’s rights of set-off and/or subrogation or its duties to subordinate or waive claims and (ii) 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 corporate law then applicable (the “Restricted Obligations”), the aggregate liability of the Swiss Obligor for Restricted Obligations shall be limited to the amount of unrestricted equity capital surplus (including the unrestricted portion of general and statutory reserves, other free reserves, retained earnings and current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at the time the Swiss Obligor is required to perform under the Finance Documents, provided that this is a requirement under applicable Swiss law at that time and further provided that such limitation shall not discharge the Swiss Obligor from its obligations in excess thereof, but merely postpone the performance date thereof until such times as performance is again permitted notwithstanding such limitation. (b) In respect of Restricted Obligations, each Swiss Obligor shall: (i) if and to the extent required by applicable law in force at the relevant time mitigate to the extent possible any Swiss Anticipatory Tax obligations to be levied on the Restricted Obligations (and cause its parent and other relevant Affiliates to fully cooperate in any mitigating efforts) and promptly notify the Agent thereof or, if such a notification procedure is not applicable: (A) subject to any applicable double taxation treaty, deduct...

Swiss Limitations. 7.1 Proceeds of an enforcement of the Pledges shall only be applied towards satisfaction of the Obligations in relation to obligations of any Grantor (other than obligations under the Credit Documents of (i) the Pledgor (v) incurred as Borrower under the Credit Agreement, (w) incurred as borrower under a Local Facility Agreement, (x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty, (y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations or (z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Pledgor, up to such proceeds and (ii) a Pledgor’s Subsidiary (v) incurred as Borrower under the Credit Agreement, (w) incurred as borrower under a Local Facility Agreement, (x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty (y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations or (z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Pledgor’s Subsidiary, up to such proceeds) to the extent application of the proceeds of an enforcement of the Pledges towards such obligations does not constitute a repayment of capital (Einlagerueckgewaehr), a violation of the legally protected reserves (gesetzlich geschuetzte Reserven) or a payment of a (constructive) dividend prohibited by the Swiss Federal Code of Obligations by the Pledgor and in the maximum amount of the Pledgor’s profits available for the distribution of dividends at the point in time the Pledges are enforced (being the balance sheet profits and any free reserves made for this purpose, in each case in accordance with the relevant Swiss law) (the “Available Enforcement Proceeds”). From the proceeds of an enforcement an amount equal to the sum of (i) the excess, if any, of the enforcement proceeds over the Available Enforcement Proceeds plus (ii) the Tax Payment Amount (as defined below) shall be returned to the Pledgor; 7.2 for such application of the Available Enforcement Proceeds towards satisfaction of the Obligations...

Swiss Limitations. (a) If and to the extent that a Swiss Guarantor is liable pursuant to this Clause 18 for obligations other than the obligations of its Subsidiaries (a "Non-group Liability") such Swiss Guarantor shall (to the extent that such is a requirement of the applicable law in force at the relevant time) only be liable to the Finance Parties for a sum equal to the maximum amount of its profits available for distribution as dividend at any given time (being the balance sheet profits and any reserves made for this purpose, in each case in accordance with art. 675 (2) and art. 671 (1) and (2) no. 3, of the Swiss Code of Obligations) provided that such limitations shall not free the relevant Swiss Obligor from payment obligations hereunder in excess of its distributable profits, but merely postpone the payment date therefor until such times as payment is permitted notwithstanding such limitations. (b) Subject to the extent required by applicable law in force at the relevant time and any applicable double taxation treaty, any Swiss Guarantor which has a Non-group Liability: (i) may deduct Swiss Anticipatory Tax at the rate of 35 percent, or such rate as is in force from time to time from any payment in respect of a Non-group Liability; (ii) may pay any such deduction mentioned in paragraph (i) above, to the Swiss Federal Tax Administration; and (iii) shall notify (or procure that the Company notifies) the Facility Agent that such a deduction has been made and provide, in accordance with Clause 13.2 (f) (Tax gross-up) the Facility Agent with evidence that such deduction has been paid to the Swiss Federal Tax Administration; and to the extent such a deduction is made (in accordance with paragraph (b)(i) of this Clause), shall not be obliged to either gross-up in accordance with Clause 13.2 (Tax gross-up) or indemnify (or otherwise hold harmless) the Finance Parties in relation to any such deduction and payment to the Swiss Federal Tax Administration. LD943539/9

Swiss Limitations. 8.1 Proceeds of an enforcement of the Pledges shall only be applied towards satisfaction of the Obligations in relation to obligations of any Grantor (other than obligations under the Credit Documents of:

Swiss Limitations. If and to the extent that the security granted by a Grantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to art. 9 of the Swiss Withholding Tax Act (the “Swiss Grantor”) under this Security Agreement secures obligations other than obligations of one of its direct or indirect subsidiaries (i.e. obligations of the Swiss Grantor's direct or indirect parent companies (up-stream liabilities) or sister companies (cross-stream liabilities)) (the “Restricted Obligations”) and that using the proceeds from the enforcement of such security would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted at such time, then the proceeds from the enforcement of such security to be applied towards discharging Restricted Obligations shall from time to time be limited to the amount permitted under applicable Swiss law; provided, that such limited amount shall at no time be less than the Swiss Grantor's distributable capital (presently being the balance sheet profits and any reserves available for distribution) at the time or times of enforcement for Restricted Obligations, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) affect the security granted by the Swiss Grantor under this Security Agreement in excess thereof, but merely postpone the time of using such proceeds from Enforcement of such security until such times as application towards discharging the Restricted Obligations is again permitted notwithstanding such limitation.

Swiss Limitations. For the avoidance of doubt, the limitations of the liability of a Swiss Guarantor under the Security Documents as set out in ‎Section 7.9 shall also apply to such Swiss Guarantor’s obligations under the Quota Pledge Agreements.

Swiss Limitations. Notwithstanding anything herein to the contrary, Section 7.13 (Swiss Limitations) of the Financing Agreement shall apply to this Agreement, mutatis mutandis. 2.5

Swiss Limitations. (a) If and to the extent the security interest granted by the Owner under this Assignment secures obligations of its Affiliates other than Subsidiaries (the “Upstream or Cross-Stream Secured Obligations”) and if and to the extent using the proceeds from the enforcement of such security interest to discharge the Upstream or Cross-Stream Secured Obligations would be restricted under then applicable Swiss corporate law, the proceeds from the enforcement of such security interest to be used to discharge the Upstream or Cross-Stream Secured Obligations shall be limited to the maximum amount of unrestricted equity capital surplus available for distribution to the shareholders of the Owner at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable law at that time; provided, further, that such limitation shall not prevent the Collateral Agent from applying such enforcement in excess of the Maximum Amount, but merely postpone the application date therefor until such time or times as application is again permitted under then applicable law. This Maximum Amount shall be determined in accordance with Swiss law and applicable Swiss accounting principles, and, if and to the extent required by applicable Swiss law, shall be confirmed by the auditors of the Owner on the basis of an interim audited balance sheet as of that time. (b) In respect of Upstream or Cross-Stream Secured Obligations, the Owner shall, as concerns the proceeds resulting from the enforcement of the security interest under this Assignment, if and to the extent required by applicable law in force at the relevant time:

Swiss Limitations. 8.1 Proceeds of an enforcement of the Pledges shall only be applied towards satisfaction of the Obligations in relation to obligations of any Grantor (other than obligations under the Credit Documents of: 8.1.1 the relevant Pledgor: (a) incurred as Borrower under the Credit Agreement; (b) incurred as borrower under a Local Facility Agreement; (c) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty; (d) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or (e) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or