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 Anticipatory Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement. (c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above. (d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following: (i) preparation of an up-to-date audited balance sheet of the Swiss Obligor; (ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves (iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law); (iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law); (v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig); (vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and (vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 6 contracts
Sources: Senior Revolving Facility Agreement (Nord Anglia Education, Inc.), Revolving Facility Agreement (Nord Anglia Education, Inc.), Amendment and Restatement Agreement (Nord Anglia Education, Inc.)
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 the Swiss Obligor Borrower becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Credit Documents for obligations of its Affiliates any other Obligor (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 subsidiaries of the Swiss Obligor’s rights Borrower provided that any minority shareholders of set-off and/or subrogation or its duties to subordinate or waive claims such subsidiaries are not Affiliates of the Swiss Borrower) and (ii) 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 the Swiss Obligor Borrower or would otherwise be restricted under Swiss corporate law then applicable Swiss law (the “Restricted Obligations”), the aggregate liability of the Swiss Obligor Borrower for Restricted Obligations shall be limited at such time to the maximum 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 Borrower’s freely disposable equity in accordance with Swiss law, presently being the time total shareholder equity less the total of (i) the aggregate share capital and (ii) statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves and taking into account (by way of deducting) any upstream or cross-stream loans not granted on arm’s length terms (the “Available Amount”). The Available Amount shall be determined on the basis of an audited annual or interim balance sheet of the Swiss Obligor is required to perform under the Finance Documents, Borrower provided that (1) this limitation shall only apply to the extent it is a requirement under applicable Swiss law at that the time the Swiss Borrower is required to perform under the Restricted Obligations and further provided that (2) such limitation shall not discharge free the Swiss Obligor Borrower from its obligations in excess thereofof the Available Amount, but merely postpone the performance date thereof therefor until such times as performance is again permitted notwithstanding such limitationpermitted.
(b) In respect of relation to payments made under the Restricted Obligations, each the Swiss Obligor Borrower shall:
(i) ensure that such payment can be made without deduction of Swiss Withholding Tax, or at a reduced rate, by discharging the liability to withhold such Swiss Withholding Tax by notification pursuant to applicable law rather than payment of the Swiss Withholding Tax (and the Swiss Borrower shall promptly deliver to the Administrative Agent a copy of each such notification made);
(ii) to the extent such notification procedure does not apply and if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the applicable rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Administrative Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and
(iiD) to the extent such as soon as possible after a deduction for Swiss Withholding Tax is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax is in a position to be so refunded, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the such Swiss Anticipatory Withholding Tax under all applicable laws (including any applicable law (including double tax treaties) ), and (ii) pay to the Agent upon receipt in case it has received any amount so refunded for application as a further payment refund of the Swiss Obligor under and pursuant Withholding Tax, pay such refund to this Agreementthe Administrative Agent promptly upon receipt thereof.
(c) To the extent Where a deduction for Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax be made pursuant to paragraph (b) above, the Swiss Borrower shall gross-up any payment under this Section 3.13 (and if it shall withhold Swiss Withholding Tax on the maximum grossed-up amount of freely disposable shareholder equity pursuant to in accordance with paragraph (ab) above is not utilisedabove), additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited subject always to the maximum amount of freely disposable shareholder equity pursuant to limitations set out in paragraph 3.13 (a) above. This paragraph (c) is without prejudice to the indemnification obligations of any Obligor other than the Swiss Borrower in respect of any amounts deducted for the account of Swiss Withholding Tax.
(d) In If and to the case of Restricted Obligationsextent requested by the Administrative Agent, the Swiss Obligor Borrower shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow allowing it to perform its obligations under this Clause 21 (Guarantee and Indemnitypromptly make the requested payment(s) with a minimum of limitations and from time to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitytime, including the following:
(i) preparation of an up-to-date audited annual or interim balance sheet of the Swiss ObligorBorrower to the extent required by Swiss corporate law, on the basis of which the Available Amount will be determined;
(ii) confirmation of the auditors of the Swiss Obligor Borrower that the relevant requested amount represents (does not exceed the maximum of) freely distributable profits and reservesAvailable Amount;
(iii) conversion approval by a shareholders’ meeting of restricted reserves into profits and reserves freely available for the Swiss Borrower of the distribution as dividends of the relevant requested amount (to within the extent permitted by mandatory Swiss lawlimits of the Available Amount);
(iv) revaluation if the enforcement of hidden reserves (obligations of the Swiss Borrower were limited due to the extent permitted by mandatory Swiss law);
(v) effects referred to in this Section 3.13 and to the extent permitted by applicable law and Swiss accounting standardslaw, write-write up or realize 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, assets (in case of realization, however, only if such assets are not necessary for such the Swiss ObligorBorrower’s business (nicht betriebsnotwendigbetriebsnotwendige Aktiven);
(vi) approval , and/or convert statutory reserves into freely available reserves to the extent such statutory reserves do not need to be maintained by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distributionmandatory law; and
(viiv) all such other measures necessary or useful useful, and permitted under applicable Swiss laws, to allow the Swiss Obligor Borrower to make the prompt payments agreed hereunder or perform promptly Restricted Obligations with a minimum of limitations.
Appears in 3 contracts
Sources: Loan Agreement (Royal Gold Inc), Revolving Facility Credit Agreement (Royal Gold Inc), Revolving Facility Credit Agreement (Royal Gold Inc)
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 Guarantor is liable under the Finance Documents, including, without limitation, pursuant to this Clause 21 (Guarantee and Indemnity), 18 for obligations other than the obligations of its Affiliates Subsidiaries (other than obligations 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 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) profits available for distribution as dividends to dividend at any given time (being the shareholders 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 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 Code of Obligations) provided that such limitation limitations shall not discharge free the relevant Swiss Obligor from its payment obligations hereunder in excess thereofof its distributable profits, but merely postpone the performance payment date thereof therefor until such times as performance payment is again permitted notwithstanding such limitationlimitations.
(b) In respect of Restricted Obligations, each Swiss Obligor shall:
(i) if and Subject 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, any Swiss Guarantor which has a Non-group Liability:
(i) may deduct Swiss Anticipatory Tax at the rate of 35 per cent. (percent, or such other rate as is in force at that time) from time to time from any payment made by it in respect of the Restricted Obligationsa Non-group Liability;
(Bii) may pay any such deduction mentioned in paragraph (i) above, to the Swiss Federal Tax Administration; and
(Ciii) shall notify (and or procure that the Company shall ensure that the Swiss Obligor will notifynotifies) the Facility Agent that such a deduction has been made and provide provide, in accordance with Clause 13.2 (f) (Tax gross-up) the Facility Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) and to the extent such a deduction is mademade (in accordance with paragraph (b)(i) of this Clause), shall not be obliged to either gross-up in accordance with Clause 16.2 13.2 (Tax gross-up) or indemnify (or otherwise hold harmless) the Finance Parties in accordance Clause 16.3 (Tax indemnity) in relation to any such deduction and payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory TaxFederal Tax Administration. LD857960/50 50 SECTION 8 REPRESENTATIONS, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.UNDERTAKINGS AND EVENTS OF DEFAULT
Appears in 2 contracts
Sources: Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC), Multicurrency Term and Revolving Facilities Agreement (Xstrata PLC)
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 Guarantor is liable under the Finance Documents, including, without limitation, pursuant to this Clause 21 (Guarantee and Indemnity), 19 for obligations other than the obligations of its Affiliates Subsidiaries (other than obligations 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 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) profits available for distribution as dividends to dividend at any given time (being the shareholders 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 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 Code of Obligations) provided that such limitation limitations shall not discharge free the relevant Swiss Obligor from its payment obligations hereunder in excess thereofof its distributable profits, but merely postpone the performance payment date thereof therefor until such times as performance payment is again permitted notwithstanding such limitationlimitations.
(b) In respect of Restricted Obligations, each Swiss Obligor shall:
(i) if and Subject 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, any Swiss Guarantor which has a Non-group Liability:
(i) may deduct Swiss Anticipatory Tax at the rate of 35 per cent. (percent, or such other rate as is in force at that time) from time to time from any payment made by it in respect of the Restricted Obligationsa Non-group Liability;
(Bii) may pay any such deduction mentioned in paragraph (i) above, to the Swiss Federal Tax Administration; and
(Ciii) shall notify (and or procure that the Company shall ensure that the Swiss Obligor will notifynotifies) the Facility Agent that such a deduction has been made and provide provide, in accordance with Clause 14.2 (f) (Tax gross-up) the Facility Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) and to the extent such a deduction is mademade (in accordance with paragraph (b)(i) of this Clause), shall not be obliged to either gross-up in accordance with Clause 16.2 14.2 (Tax gross-up) or indemnify (or otherwise hold harmless) the Finance Parties in accordance Clause 16.3 (Tax indemnity) in relation to any such deduction and payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory TaxFederal Tax Administration. 45 SECTION 8 REPRESENTATIONS, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.UNDERTAKINGS AND EVENTS OF DEFAULT
Appears in 2 contracts
Sources: Debt Bridge Facility Agreement (Xstrata PLC), Debt Bridge Facility Agreement (Xstrata PLC)
Swiss Limitations. Notwithstanding any other provision of anything to the contrary in this Clause 21 (Guarantee and Indemnity) Indenture or an applicable Note Guarantee, the guarantee, indemnity and other obligations of any a Swiss Obligor expressed Guarantor under this Indenture or an applicable Note Guarantee are subject to be assumed in this Agreement shall be limited as follows:
(a) the following limitations: If and to the extent that (i) a Swiss Obligor Guarantor becomes (directly or indirectly) liable under the Finance Documents, including, without limitation, this Clause 21 (Indenture or an applicable Note Guarantee and Indemnity), for obligations of its Affiliates the Issuer (other than obligations of its direct or indirect wholly owned Subsidiariesthe “Restricted Obligations”) 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) 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 corporate law then applicable (the “Restricted Obligations”)applicable, the such Swiss Guarantor’s aggregate liability of the Swiss Obligor for Restricted Obligations under this Indenture or an applicable Note Guarantee shall be limited to the maximum 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 permitted by law at the time the Swiss Obligor Guarantor is required to perform Restricted Obligations under this Indenture or an applicable Note Guarantee (the Finance Documents, provided that this is a requirement under applicable Swiss law at that time and further provided that such “Freely Disposable Amount”).
(a) Such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereof, of the Freely Disposable Amount but merely postpone the performance date thereof until such times as performance when the Swiss Guarantor has again freely disposable equity and if and to the extent such freely disposable equity is again permitted notwithstanding such limitationavailable.
(b) In respect of Restricted ObligationsThe Swiss Guarantor shall take and cause to be taken all and any action, each Swiss Obligor shallto the extent reasonably practical and possible, including, without limitation:
(i1) if and the passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or an applicable Note Guarantee,
(2) the provision of an audited interim balance sheet,
(3) the provision of a confirmation from the auditors of the Swiss Guarantor that a payment of the Swiss Guarantor under this Indenture or an applicable Note Guarantee in an amount corresponding to the extent Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, in order to allow a prompt payment of amounts owed by the Swiss Guarantor under this Indenture or an applicable Note Guarantee as well as the performance by the Swiss Guarantor of other obligations under this Indenture or an applicable Note Guarantee.
(c) If so required by under applicable law in force (including tax treaties) at the relevant time mitigate it is required to make a payment under this Indenture or an applicable Note Guarantee, 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 applicableGuarantor:
(A1) subject shall use its best efforts to any 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 double taxation treaty, law (including tax treaties) rather than payment of the tax;
(2) shall deduct the Swiss Anticipatory Withholding Tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to (d) (i) above does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of 35 per cent. part of such tax by notification if the notification procedure pursuant to sub-paragraph (or such other rate as is in force at that timed) from any payment made by it in respect (i) above applies for a part of the Restricted Obligations;
(B) Swiss Withholding Tax only; and shall pay within the time allowed any such deduction taxes deducted to the Swiss Federal Tax Administration; and
(C3) shall promptly notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent Trustee that such a notification or, as the case may be, deduction has been made and provide the Agent Trustee with evidence that such a deduction 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; and.
(iid) to In the extent such case of a deduction is madeof Swiss Withholding Tax, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor Guarantor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, that is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment under this Indenture or an applicable Note Guarantee , will will, as soon as possible after the deduction of the Swiss Anticipatory Tax, such deduction:
(i1) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and ), and
(ii2) pay to the Agent Trustee upon receipt any amount so refunded for application as a further payment of refunded.
(e) The Trustee shall co-operate with the Swiss Obligor under and Guarantor to secure such refund.
(f) If a refund is made to a Notes Secured Party, such Notes Secured Party shall transfer the refund so received, after the deduction of costs, to the Swiss Guarantor, subject to any right of set-off of such Notes Secured Party pursuant to this AgreementIndenture or an applicable Note Guarantee.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 2 contracts
Sources: Indenture (Beach Acquisition Co Parent, LLC), Indenture (Skechers Usa Inc)
Swiss Limitations. Notwithstanding anything to the contrary in this Agreement or any other provision of this Clause 21 (Guarantee and Indemnity) Loan Document, the guarantee, indemnity and other obligations of any Swiss Obligor expressed to be assumed in Loan Party and the rights of the Administrative Agent and any other Secured Party under this Agreement shall be limited as followsor any other Loan Document are subject to the following limitations:
(a) If and to the extent that (i) a guarantee or security granted, indemnity or other obligation assumed by a Swiss Obligor becomes liable Loan Party under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), for Agreement or any other Loan Document guarantees or secures obligations of its Affiliates (other than obligations any of its (direct or indirect wholly owned Subsidiariesindirect) parent companies (upstream security) or otherwise obliged sister companies (cross-stream security) (the “Upstream or Cross-Stream Secured Obligations”) and if and to grant economic benefits the extent using the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to its Affiliates discharge the Upstream or Cross-Stream Secured Obligations would be unlawful under Swiss corporate law (other than its direct inter alia, prohibiting capital repayments 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 at such Swiss Obligor or would otherwise be restricted under Swiss corporate law then applicable (the “Restricted Obligations”)time, the aggregate liability proceeds from the enforcement of such guarantee, security, indemnity or other obligation to be used to discharge the Swiss Obligor for Restricted Upstream or Cross-Stream Secured Obligations shall be limited to the maximum amount of unrestricted such Swiss Loan Party’s freely disposable shareholder 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 of enforcement (the Swiss Obligor “Maximum Amount”); provided that such limitation is required to perform under the Finance Documents, provided that this is a requirement under applicable Swiss corporate law at that time and further provided time; provided, further, that such limitation shall not discharge the free that Swiss Obligor Loan Party from its obligations in excess thereofof the Maximum Amount, but merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationunder then applicable Swiss corporate law. This Maximum Amount of freely disposable shareholder equity shall be determined in accordance with Swiss law and applicable Swiss accounting principles.
(b) In respect of Restricted Upstream or Cross-Stream Secured Obligations, each Swiss Obligor Loan Party shall:
(i) , as concerns the proceeds resulting from the enforcement of any guarantee or security granted or indemnity or other obligation assumed by such Swiss Loan Party under this Agreement or any other Loan Document, if and to the extent required by applicable law in force at the relevant time mitigate time:
(i) procure that such enforcement proceeds can be used to the extent possible any discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss Anticipatory Tax obligations by discharging the liability to be levied on such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Restricted Obligations tax;
(and cause its parent and other relevant Affiliates to fully cooperate in any mitigating effortsii) and promptly notify if the Agent thereof or, if such a notification procedure is pursuant to sub-paragraph (i) above does not applicable:
(A) apply and subject to any applicable double taxation treatyparagraph (c) below, deduct the Swiss Anticipatory Tax at such rate (currently 35% at the rate date of 35 per cent. (or such other rate this Agreement) as is in force at that time) from time to time from any payment made by it in respect of the Restricted such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations;
(B) pay , and pay, without delay, any such deduction taxes deducted to the Swiss Federal Tax Administration; and;
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Administrative Agent that such a notification or, as the case may be, deduction has been made made, and provide the Administrative Agent with evidence that such a deduction 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; and
(iiiv) to in the extent such case of a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 of Swiss Anticipatory Tax,
(Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which isperson, as a result of a deduction of Swiss Anticipatory Tax, that is entitled to a full or partial refund of the Swiss Anticipatory TaxTax deducted from such enforcement proceeds, will will, as soon as possible after the such deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) ), and (ii) pay to the Administrative Agent upon receipt any amount so refunded for application as refunded; and
(B) if the Administrative Agent or any other Secured Party is entitled to a further payment full or partial refund of the Swiss Obligor under Anticipatory Tax deducted from such payment, and pursuant if requested by the Administrative Agent or such Secured Party, shall provide that Administrative Agent or the respective Secured Party those documents that are required by law and applicable tax treaties to this Agreementbe provided by the payer of such tax to prepare a claim for refund of Swiss Anticipatory Tax.
(c) To the extent If a Swiss Obligor Loan Party is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b)(ii) above at the time the Administrative Agent is enforcing security interests granted by the Swiss Borrower, the Administrative Agent shall, upon request of such Swiss Loan Party, deduct from the proceeds received from the enforcement of such security interests the Swiss Anticipatory Tax at such rate (35% at the date of this Agreement) as is in force from time to time and shall pay without delay, any such taxes deducted to the Swiss Federal Tax Administration;
(d) If a Swiss Loan Party is obliged to withhold Swiss Anticipatory Tax in accordance with paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant Administrative Agent shall be entitled to paragraph (a) above is not utilised, additional further enforce the guarantee or security interest granted or indemnity or other obligation assumed by such Swiss Obligor Loan Party under this Agreement shall be enforced until the enforcement or any other Loan Document and/or further apply proceeds equate therefrom against Upstream or Cross-Stream Secured Obligations up to an amount which (after making any deduction of Swiss Anticipatory Tax) is equal to that amount which would have resulted been obtained if no deduction withholding of Swiss Anticipatory Tax had been were required, provided that whereby such enforcement amount (including the increased amount) further enforcements/applications of proceeds shall in any event always be limited to the maximum amount of the freely disposable shareholder equity pursuant to distributable capital of such Swiss Loan Party as set out in paragraph (a) above.
(de) In If and to the case of Restricted Obligationsextent requested by the Administrative Agent or if and to the extent required under Swiss mandatory law applicable at the relevant time, in order to allow the Administrative Agent or the Secured Parties to obtain a maximum benefit under the guarantee or security granted or indemnity or other obligation assumed by such Swiss Obligor Loan Party, such Swiss Loan Party shall, and any parent company of the such Swiss Obligor Loan Party incorporated in Switzerland being a party to this Agreement shall procure that the such Swiss Obligor Loan Party will, promptly implement all such measures and/or take and promptly cause to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitybe taken any action, including the following:
(i) the passing of any shareholders’ resolutions or quotaholders’ resolutions, as the case may be, to approve the use of the enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the enforcement of the Upstream or Cross-Stream Secured Obligations in order to allow a prompt use of the enforcement proceeds;
(ii) preparation of an up-to-date audited balance sheet of the that Swiss ObligorLoan Party;
(iiiii) confirmation statement of the auditors of that Swiss Loan Party confirming the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reservesMaximum Amount;
(iiiiv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(ivv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(vvi) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such the that respective Swiss ObligorLoan Party’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the such Swiss Obligor Loan Party to make the payments use enforcement proceeds as agreed hereunder with a minimum of limitations.
Appears in 2 contracts
Sources: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion Inc.)
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 a Guarantor incorporated in Switzerland (ia "Swiss Guarantor") a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “"Restricted Obligations”"), the aggregate liability of the Swiss Obligor Guarantor 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 and, to the extent permitted by then applicable law, current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents"Maximum Amount"), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
(b) Immediately after having been requested to perform the Restricted Obligations under the Finance Documents, the Swiss Guarantor shall (i) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Facility Agent or required under then applicable Swiss law, provide the Facility Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Facility Agent (such as board and shareholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Facility Agent.
(c) In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
(i) if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Facility Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and;
(ii) to the extent such as soon as possible after a deduction for Swiss Withholding Tax is made, not be obliged to either gross-up in accordance with Clause 16.2 made as required by applicable law:
(Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory Withholding Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, is in a position to be so refunded; and
(iB) request a in case it has received any refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) Withholding Tax, pay such refund to the Agent promptly upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) abovethereof.
(d) In For the case avoidance of Restricted Obligationsdoubt, where a deduction for Swiss Withholding Tax is required pursuant to paragraph (c) above, the Swiss Obligor shall, and any parent company obligations of the Swiss Obligor being a party to Obligors under Clause 6.5 (Minimum interest), Clause 10.2 (Taxes), Clause 19.9 (Grossing-up) and Clause 10.3 (Tax indemnity) of this Agreement shall procure that the Swiss Obligor willremain applicable, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (save to the extent permitted by mandatory Swiss law);and for as long as that would cause the Maximum Amount to be exceeded.
(ive) revaluation If the enforcement of hidden reserves (Restricted Obligations would be limited due to the extent permitted by mandatory effects referred to in this Clause 11.10.7, then the Swiss law);
Guarantor shall (vi) to the extent permitted by applicable law and Swiss accounting standardslaw, write-up or revalue and/or realize any of its assets that are shown in on its balance sheet with a book value that is significantly lower than the market value of the such assets, in case of realization, however, only if such assets are not necessary for such Swiss Obligor’s business and (nicht betriebsnotwendig);
(viii) approval by a shareholders’ meeting of reduce its share capital to the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitationsallowed under then applicable law.
Appears in 2 contracts
Sources: Multicurrency Revolving Credit Agreement (Pra Group Inc), Term and Multicurrency Revolving Credit Facilities Agreement (Pra Group Inc)
Swiss Limitations. Notwithstanding any other provision of this Clause 21 (Guarantee and Indemnity) anything to the guarantee, indemnity and other obligations of any Swiss Obligor expressed to be assumed contrary in this Agreement shall be limited as followsand the other Loan Documents, the obligations of the Swiss Borrower or any other Loan Party incorporated in Switzerland (collectively the “Swiss Loan Party”) and the rights of the Collateral Agent and Lender under this Agreement and the other Loan Documents are subject to the following limitations:
(a) If and to the extent that (i) a guarantee or security interest granted or any other obligations assumed by a Swiss Obligor becomes liable Loan Party under this Agreement and the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), for other Loan Documents guarantees or secures obligations of its Affiliates (other than obligations of its direct or indirect wholly owned Subsidiariesindirect) parent company (upstream security) or otherwise obliged its sister companies (crossstream security) (the “Upstream or Cross-Stream Secured Obligations”) and if and to grant economic benefits the extent using the proceeds from the enforcement of such guarantee, security interest or other obligation to its Affiliates (other than its direct discharge the Upstream 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 setCross-off and/or subrogation or its duties to subordinate or waive claims and (ii) complying with such obligations Stream Secured Obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), 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”)law, the aggregate liability proceeds from the enforcement of such guarantee, security interest or other obligation to be used to discharge the Swiss Obligor for Restricted Upstream or Cross-Stream Secured Obligations shall be limited to the maximum amount of unrestricted that Swiss Loan Party’s freely disposable shareholder or quotaholder 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 of enforcement (the Swiss Obligor “Maximum Amount”); provided that such limitation is required to perform under the Finance Documents, provided that this is a requirement under applicable Swiss law at that time and further provided time; provided, further, that such limitation shall not discharge free the Swiss Obligor Loan Party from its obligations in excess thereofof the Maximum Amount, but merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationunder then applicable law. This Maximum Amount of freely disposable shareholder or quotaholder equity 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 Swiss Loan Party on the basis of an interim audited balance sheet as of that time.
(b) In respect of Restricted Upstream or Cross-Stream Secured Obligations, each the Swiss Obligor Loan Party shall:
(i) , as concerns the proceeds resulting from the enforcement of the guarantee or security interest granted or other obligations assumed under this Agreement and the other Loan Documents, 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 applicabletime:
(Ai) subject procure that such enforcement proceeds can be used to any discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss Withholding Tax by discharging the liability to such tax by notification pursuant to applicable double taxation treatylaw rather than payment of the tax;
(ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Anticipatory Withholding Tax at such rate (currently thirty-five percent (35%) at the rate date of 35 per cent. (or such other rate this Agreement) as is in force at that time) from time to time from any payment made by it in respect of the Restricted such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations;
(B) pay , and pay, without delay, any such deduction taxes deducted to the Swiss Federal Tax Administration; and;
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Collateral Agent that such a notification or, as the case may be, deduction has been made made, and provide the Collateral Agent with evidence that such a deduction 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; and
(iiiv) to in the extent such case of a deduction is madeof Swiss Withholding Tax, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person person, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such enforcement proceeds, will will, as soon as possible after the deduction of the Swiss Anticipatory Tax, such deduction,
(iA) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and ), and
(iiB) pay to the Collateral Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreementrefunded.
(c) To the extent a The Swiss Obligor is required Loan Party shall promptly take and promptly cause to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making taken any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from securityaction, including the following:
(i) the passing of any shareholders’ or quotaholders’ resolutions, as may be the case, to approve the use of the enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the enforcement of the security interest in order to allow a prompt use of the enforcement proceeds;
(ii) preparation of an up-to-date audited balance sheet of the Swiss ObligorLoan Party;
(iiiii) confirmation of the auditors of the Swiss Obligor Loan Party that the relevant amount represents (the maximum of) freely distributable profits and reservesMaximum Amount;
(iiiiv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and law, Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such the Swiss ObligorLoan Party’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(viivi) all such other measures necessary or useful to allow the Swiss Obligor Loan Party to make the payments use enforcement proceeds as agreed hereunder with a minimum of limitations.
Appears in 2 contracts
Sources: Credit Agreement (Roivant Sciences Ltd.), Credit Agreement (Roivant Sciences Ltd.)
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:
(ai) If and to the extent that (i) a Swiss Obligor Loan Party becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Agreement or any other Loan Document for obligations of its Affiliates any other Loan Party (other than obligations of its the wholly owned direct or indirect wholly owned Subsidiariessubsidiaries of such Swiss Loan Party) 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 “Restricted Obligations”) and (ii) 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 Loan Party or would otherwise be restricted under Swiss corporate law and practice then applicable (the “Restricted Obligations”)applicable, the such Swiss Loan Party’s aggregate liability of the Swiss Obligor for Restricted Obligations shall be limited not exceed the maximum amount permitted by law at the time it becomes liable (the “Freely Disposable Amount”).
(ii) This limitation shall only apply 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 extent it is a requirement under applicable law at the time the Swiss Obligor Loan Party is required to perform Restricted Obligations under the Finance Loan Documents, provided that this is a requirement under applicable Swiss law at that time and further provided that such . Such limitation shall not discharge free the Swiss Obligor Loan Party from its obligations in excess thereofof the Freely Disposable Amount, 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 Anticipatory Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction to when the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction Loan Party has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of again freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) aboveequity.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion If the enforcement of restricted reserves into profits and reserves freely available for the distribution as dividends (obligations of the Swiss Loan Party under the Loan Documents would be limited due to the extent permitted by mandatory effects referred to in this Agreement, the Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) Loan Party shall further, to the extent permitted by applicable law and Swiss accounting standardsstandards and upon request by the Agent, write-(i) write up or realize 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 realizationsale, however, only if such assets are not necessary for such the Swiss ObligorLoan Party’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.
(viiv) approval by a shareholders’ meeting The Swiss Loan Party and any direct holding company of the Swiss Obligor Loan Party which is a party to a Loan Document shall procure that the Swiss Loan Party 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 Agent, including, without limitation, (resultingi) profit distribution; and
the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (viiii) all the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Loan Party of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Loan Party that a payment of the Swiss Loan Party 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 measures necessary confirmations which may be required as a matter of Swiss mandatory law in force at the time the Swiss Loan Party is required to make a payment or useful perform other obligations under this Agreement or any other Loan Document, in order to allow the Swiss Obligor a prompt payment in relation to make the payments agreed hereunder Restricted Obligations with a minimum of limitations.
(v) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, the Swiss Loan Party:
(A) 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;
(B) 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
(C) shall promptly notify the Agent that such notification or, as the case may be, deduction has been made, and provide the 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.
(vi) In the case of a deduction of Swiss Withholding Tax, the Swiss Loan Party 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:
(A) request a refund of the Swiss Withholding Tax under applicable law (including tax treaties), and
(B) pay to the Agent upon receipt any amount so refunded.
(vii) The Agent shall co-operate with the Swiss Loan Party to secure such refund.
(viii) To the extent the Swiss Loan Party is required to deduct Swiss Withholding Tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Loan Party 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 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 an Indemnified Person, such Indemnified Person shall transfer the refund so received to the Swiss Loan Party, subject to any right of set-off of such Indemnified Person pursuant to the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (V F Corp)
Swiss Limitations. Notwithstanding anything contrary elsewhere in this Indenture, the liability of each Note Guarantor under this Indenture, the Note Guarantee, and any other provision Security Document, including any future Note Guarantor, that is or may be incorporated, organized or formed, as the case may be, or otherwise is or may be subject to the laws of Switzerland, as the case may be (a “Swiss Guarantor”), shall be limited, and by their acceptance of this Clause 21 (Guarantee Indenture and Indemnity) the guaranteeNotes, indemnity each Holder and other obligations the Trustee, agree, that the liability of any a Swiss Obligor expressed to be assumed in this Agreement Guarantor shall be limited as follows:
(a) If if and to the extent that (i) a guarantee or security interest or indemnity granted or assumed by a Swiss Obligor becomes liable Guarantor under this Indenture, the Finance DocumentsNotes, including, without limitation, this Clause 21 (Guarantee and Indemnity), the Note Guarantees or any Security Document guarantees or secures obligations of or indemnifies for obligations breached or not satisfied by one of its Affiliates (other than obligations of its affiliates which is not a 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 subsidiary of the Swiss Obligor’s rights of setGuarantor (the “Upstream or Cross-off and/or subrogation Stream Obligations”) and if and to the extent using payments under such guarantee, security interest or its duties indemnity to subordinate discharge the Upstream or waive claims and (ii) complying with such obligations Cross-Stream Obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such under Swiss Obligor corporate law or would otherwise be restricted under Swiss corporate law and practice then applicable (the “Restricted Obligations”)applicable, the aggregate liability proceeds from the enforcement of such guarantee, security interest or indemnity to be used to discharge the Swiss Obligor for Restricted Upstream or Cross-Stream Obligations shall be limited to the maximum amount of unrestricted the respective Swiss Guarantor’s freely disposable 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 of enforcement (the Swiss Obligor “Maximum Amount”); provided that such limitation is required to perform under the Finance Documents, provided that this is a requirement under applicable Swiss law Applicable Law at that time and further provided time; provided, further, that such limitation shall not discharge free the respective Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitation.
(b) In respect of Restricted Obligationsunder then Applicable Law. This Maximum Amount shall be determined in accordance with Swiss law and applicable Swiss accounting principles, each Swiss Obligor shall:
(i) and, if and to the extent required by applicable law Swiss law, shall be confirmed by the auditors of the respective Swiss Guarantor on the basis of an interim audited balance sheet as of that time;
(b) in respect of Upstream or Cross-Stream Obligations, each Swiss Guarantor shall, as concerns the proceeds resulting from the enforcement of any guarantee or security or indemnity or other obligation granted or assumed by such Swiss Guarantor under this Indenture, the Notes, the Note Guarantees, or any other Security Document, if and to the extent Swiss withholding tax is 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 paid in any mitigating efforts) and promptly notify the Agent thereof or, if such a notification procedure is not applicablerelation thereto:
(Ai) procure that such payment or enforcement proceeds can be used to discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss withholding tax by discharging the liability to pay such tax by notification pursuant to Applicable Law (including double tax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to Section 7.9(b)(i): (x) applies for a part of the Swiss withholding tax only, such Swiss Guarantor undertakes to deduct (and, with respect to enforcement proceeds of security, the Security Agent shall deduct) from any payment or enforcement proceeds used to discharge Upstream or Cross-Stream Obligations an amount of Swiss withholding tax at the reduced rate resulting after the discharge of part of such tax by notification under Applicable Law; or (y) does not apply, deduct (and, with respect to enforcement proceeds of security, the Security Agent shall deduct) an amount equivalent to the Swiss withholding tax at such rate (currently 35% at the date of this Indenture) as is in force from time to time from any such payment or enforcement proceeds used to discharge Upstream or Cross-Stream Obligations that may be due by such Swiss Guarantor to the Swiss federal tax administration (Eidgenössische Steuerverwaltung) (the “Swiss Federal Tax Administration”) from such payment or enforcement, and, in the case of each of the foregoing clauses (x) and (y), subject to any applicable double taxation treaty or any other applicable treaty, deduct Swiss Anticipatory Tax at pay (and, with respect to enforcement proceeds of security, the rate of 35 per cent. (Security Agent shall pay or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay cause to be paid), without delay, any such deduction taxes deducted to the Swiss Federal Tax Administration; andAdministration in the name and for the account of the Swiss Guarantor;
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent Trustee or Security Agent, as applicable, that such a notification or, as the case may be, deduction has been made made, and provide the Agent Trustee or Security Agent, as applicable, with evidence that such a deduction 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; and
(iiiv) to in the extent such case of a deduction is madeof Swiss withholding tax, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-upx) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person Person, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory Taxwithholding tax deducted from such payment or enforcement proceeds, will will, as soon as possible after such deduction (A) in the deduction case of the Swiss Anticipatory TaxIssuer or one of its affiliates, (i) request a refund of the Swiss Anticipatory Tax withholding tax under any applicable law Applicable Law (including double tax treaties) ); and (iiB) pay to the Agent Trustee or Security Agent, as applicable, upon receipt any amount so refunded for application as refunded; and (y) if the Trustee, the Security Agent or any Holder is entitled to a further payment full or partial refund of the Swiss Obligor under withholding tax deducted from such payment or enforcement proceeds, and pursuant if requested by the Trustee, the Security Agent or any such Holder, shall provide to this Agreement.the Trustee, the Security Agent or any such Holder those documents that are required by law and applicable tax treaties to be provided by the payer of such tax to prepare a claim for refund of Swiss withholding tax;
(c) To the extent if a Swiss Obligor Guarantor or the Security Agent is required obliged to deduct Swiss Anticipatory Tax pursuant to withholding tax in accordance with paragraph (b) above, the Trustee and if the maximum amount Security Agent on behalf of freely disposable shareholder equity pursuant the Holders shall be entitled to paragraph (a) above is not utilised, additional further enforce the guarantee or security interest or indemnity or other obligation granted or assumed by such Swiss Obligor Guarantor under this Agreement shall be enforced until Indenture, the enforcement Notes, the Note Guarantees, or any Security Document and/or further apply proceeds equate therefrom against Upstream or Cross-Stream Obligations up to an amount which (after making any deduction is equal to that amount which would have been obtained if no withholding of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been withholding tax were required, provided that whereby such enforcement amount (including the increased amount) further enforcements/applications of proceeds shall in any event always be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.Maximum Amount as set out in Section 7.9(a);
(d) In if and to the case of Restricted Obligations, extent (i) reasonably requested by the Swiss Obligor shall, and any parent company Trustee of the Security Agent (acting at the direction of the requisite Holders), or (ii) required under Swiss Obligor being a party to this Agreement shall procure that mandatory law applicable at the Swiss Obligor willrelevant time, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and in order to allow the Agent (Trustee and the Finance Parties) prompt use Security Agent on behalf of the proceeds from securityHolders to obtain a maximum benefit under this Indenture, the Notes, the Note Guarantees and/or the Security Documents, such Swiss Guarantor shall promptly take and promptly cause to be taken any action, including the following:
(i) the passing of any shareholders’ resolutions or quotaholders’ resolutions, as the case may be, to approve the application of the enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the enforcement of the Swiss Guarantors obligations under this Indenture, the Notes, the Note Guarantees and/or the Security Documents in order to allow a prompt application of the enforcement proceeds;
(ii) preparation of an up-to-date audited balance sheet of the Swiss ObligorGuarantor;
(iiiii) confirmation of the auditors of the Swiss Obligor Guarantor that the relevant amount represents (the maximum of) freely distributable profits and reservesMaximum Amount;
(iiiiv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(ivv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(vvi) to the extent permitted by applicable law Applicable Law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such the Swiss ObligorGuarantor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor Guarantor to make the payments apply enforcement proceeds as agreed hereunder with a minimum of limitations.
(e) To the extent a deduction for Swiss withholding tax is made, a Swiss Guarantor shall not be obliged to either gross-up or indemnify (or otherwise hold harmless) the Holders in relation to any such deduction or payment if and to the extent the gross-up or indemnification, together with the relevant payment made by the Swiss Guarantor in respect of its guarantee, security or indemnity obligations plus the amounts paid to the Swiss Federal Tax Administration (including additional amounts which may become due as a result of the gross-up or indemnification payment) exceeds the Maximum Amount; provided that if a Swiss Guarantor is relieved of its obligation to gross-up or indemnify (or otherwise hold harmless) the Holders as set forth herein, the Issuer and any other Note Guarantors (and such Swiss Guarantor to the extent that it is subsequently not constrained by the Maximum Amount) shall remain liable for any such deduction or payment in an amount sufficient to provide the Holders with all payments to which such Holders would have been entitled under the Notes had the foregoing not applied.
Appears in 1 contract
Sources: Indenture (Gran Tierra Energy Inc.)
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) 7.5.1 If and to the extent that (i) the security granted by a Grantor incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss Obligor becomes liable resident pursuant to art. 9 of the Swiss Withholding Tax Act (the “Swiss Grantor”) under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), for Security Agreement secures obligations of its Affiliates (other than obligations of one of its direct or indirect wholly owned Subsidiaries) or otherwise obliged to grant economic benefits to its Affiliates subsidiaries (other than its i.e. obligations of the Swiss Grantor's 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 setparent companies (up-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 Reservenstream liabilities) or the payment of a sister companies (constructivecross-stream liabilities)) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss corporate law then applicable (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 aggregate liability proceeds from the enforcement of the Swiss Obligor for such security to be applied towards discharging Restricted Obligations shall from time to time be limited to the amount of unrestricted equity permitted under applicable Swiss law; provided, that such limited amount shall at no time be less than the Swiss Grantor's distributable capital surplus (including presently being the unrestricted portion of general balance sheet profits and statutory reserves, other free reserves, retained earnings and current net profits) any reserves available for distribution as dividends to the shareholders of the Swiss Obligor distribution) at the time the Swiss Obligor is required to perform under the Finance Documentsor times of enforcement for Restricted Obligations, provided that this is a requirement under applicable Swiss law at that time and further provided that such limitation (as may apply from time to time or not) shall not discharge (generally or definitively) affect the security granted by the Swiss Obligor from its obligations Grantor under this Security Agreement in excess thereof, but merely postpone the performance date thereof time of using such proceeds from Enforcement of such security until such times as performance application towards discharging the Restricted Obligations is again permitted notwithstanding such limitation.
(b) 7.5.2 In case the Swiss Grantor who must make a payment in respect of Restricted ObligationsObligations under this Security Agreement is obliged to withhold Swiss Withholding Tax in respect of such payment, each the Swiss Obligor Grantor shall:
(i) if and procure 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 the extent required such tax by notification pursuant to applicable law in force at (including double tax treaties) rather than payment of the relevant time mitigate to tax;
(ii) if 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 pursuant to Section 7.5.2(i) hereof does not applicable:
(A) subject to any applicable double taxation treatyapply, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. 35% (or such other rate as is in force from time to time), or if the notification procedure pursuant to Section 7.5.2(i) hereof applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at that time) the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of the Restricted Obligations;
(B) Obligations and promptly pay any such deduction taxes to the Swiss Federal Tax Administration; and;
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a notification, or as the case may be, deduction has been made and provide the Agent with evidence that such a deduction 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; and
(iiiv) to in the extent such case of a deduction is madeof Swiss Withholding Tax, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person other than the Agent, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment in respect of Restricted Obligations, will will, as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the followingdeduction:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
Sources: Lc Credit Agreement (Weatherford International PLC)
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 a Guarantor incorporated in Switzerland (ia "Swiss Guarantor") a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “"Restricted Obligations”"), the aggregate liability of the Swiss Obligor Guarantor 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 and, to the extent permitted by then applicable law, current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents"Maximum Amount"), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
(b) Immediately after having been requested to perform the Restricted Obligations under the Finance Documents, the Swiss Guarantor shall (i) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Facility Agent or required under then applicable Swiss law, provide the Facility Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Facility Agent (such as board and shareholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Facility Agent.
(c) In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
(i) if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Facility Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and;
(ii) to the extent such as soon as possible after a deduction for Swiss Withholding Tax is made, not be obliged to either gross-up in accordance with Clause 16.2 made as required by applicable law:
(Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory Withholding Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, is in a position to be so refunded; and #3462336/1 45 (i117)
(B) request a in case it has received any refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) Withholding Tax, pay such refund to the Agent promptly upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) abovethereof.
(d) In For the case avoidance of Restricted Obligationsdoubt, where a deduction for Swiss Withholding Tax is required pursuant to paragraph (c) above, the Swiss Obligor shall, and any parent company obligations of the Swiss Obligor being a party to Obligors under Clause 6.5 (Minimum interest), Clause 10.2 (Taxes), Clause 19.9 (Grossing-up) and Clause 10.3 (Tax indemnity) of this Agreement shall procure that the Swiss Obligor willremain applicable, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (save to the extent permitted by mandatory Swiss law);and for as long as that would cause the Maximum Amount to be exceeded.
(ive) revaluation If the enforcement of hidden reserves (Restricted Obligations would be limited due to the extent permitted by mandatory effects referred to in this Clause 11.10.6, then the Swiss law);
Guarantor shall (vi) to the extent permitted by applicable law and Swiss accounting standardslaw, write-up or revalue and/or realize any of its assets that are shown in on its balance sheet with a book value that is significantly lower than the market value of the such assets, in case of realization, however, only if such assets are not necessary for such Swiss Obligor’s business and (nicht betriebsnotwendig);
(viii) approval by a shareholders’ meeting of reduce its share capital to the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitationsallowed under then applicable law.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
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 Guarantor under the Finance Documentsthis Agreement (directly or indirectly) guarantees, including, without limitation, this Clause 21 (Guarantee and Indemnity), for secures or indemnifies obligations of its Affiliates (other than obligations of one of its wholly-owned direct or indirect wholly owned Subsidiaries) or otherwise obliged to grant economic benefits to its Affiliates subsidiaries (other than its i.e. obligations of such Swiss Guarantor’s 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 setparent companies (up-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 Reservenstream liabilities) or the payment of a sister companies (constructivecross-stream liabilities)) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss corporate law then applicable (the “Restricted Obligations”) and the making of a payment in fulfilling the obligations pursuant to this Agreement with respect to Restricted Obligations would under Swiss law (inter alia, prohibiting capital repayments or restricting distributions), at the aggregate liability of the Swiss Obligor for Restricted Obligations time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount of unrestricted equity permitted to be paid under Swiss law (the “Maximum Amount”); provided that such Maximum Amount shall at no time be less than such Swiss Guarantor’s distributable 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 reserves at the time the or times such payment is requested from such Swiss Obligor is required to perform under the Finance DocumentsGuarantor, provided that this is a requirement under applicable Swiss law at that time and further provided that such limitation (as may apply from time to time or not) shall not discharge the (generally or definitively) release such Swiss Obligor Guarantor from its payment obligations hereunder in excess thereofof the Maximum Amount, but merely shall postpone the performance payment date thereof therefore until such times as performance payment is again permitted notwithstanding such limitation. Any and all indemnities and other financial undertakings assumed by a Swiss Guarantor under or in connection with this Agreement shall be construed in a manner consistent with the provisos of this Section.
(b) In If a demand for payment has been issued to a Swiss Guarantor in respect of Restricted ObligationsObligations and such Swiss Guarantor is obliged to withhold Swiss Withholding Tax in respect of such payment, each the relevant Swiss Obligor Guarantor shall:
(i) if and use reasonable efforts to make such payments without deduction of Swiss Withholding Tax, or to reduce the extent rate of Swiss Withholding Tax required to be deducted, by discharging the liability to such tax by notification pursuant to applicable law in force at (including double tax treaties) rather than payment of the relevant time mitigate to tax;
(ii) if 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 pursuant to sub-paragraph (i) above does not applicable:
(A) subject to any applicable double taxation treatyapply, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. 35% (or such other rate as is in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at that time) the reduced rate resulting after the discharge of part of such Tax by notification under applicable law, from any payment made by it in respect of the Restricted Obligations;
(B) Obligations and promptly pay any such deduction Taxes to the Swiss Federal Tax Administration; andAdministration (Eidgenössische Steuerverwaltung);
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Administrative Agent that such a notification, or as the case may be, deduction has been made and provide the Administrative Agent with evidence that such a deduction 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; and;
(iiiv) to in the extent such case of a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 of Swiss Withholding Tax:
(Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best reasonable efforts to ensure that any person other than a Secured Party, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment in respect of Restricted Obligations, will will, as soon as possible after the such deduction of the Swiss Anticipatory Tax, (iA) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and (iiB) pay to the Administrative Agent upon receipt any amount amounts so refunded for application as refunded; and
(B) if a further payment Secured Party is entitled to a full or partial refund of the Swiss Obligor under Withholding Tax deducted from such payment, and pursuant if requested by the Administrative Agent, shall provide the Administrative Agent (on its behalf or on behalf of any Secured Party) those documents that are required by law and applicable tax treaties to this Agreement.be provided by the payer of such tax, for each relevant Secured Party, to prepare a claim for refund of Swiss Withholding Tax,
(c) To the extent If a Swiss Obligor Guarantor is required obliged to deduct withhold Swiss Anticipatory Withholding Tax pursuant to in accordance with paragraph (b) above, the Administrative Agent shall be entitled to further enforce the Guaranty, any indemnity and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest other financial undertaking granted by such Swiss Obligor Guarantor under this Agreement shall be enforced until and/or further apply proceeds therefrom against the enforcement proceeds equate Restricted Obligations up to an amount which (after making any deduction is equal to that amount which would have been obtained if no withholding of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Withholding Tax had been were required, provided that whereby such enforcement amount (including the increased amount) further enforcements/applications of proceeds shall in any event always be limited to the maximum amount of freely disposable shareholder equity pursuant Maximum Amount from time to paragraph (a) abovetime.
(d) In If and to the case of Restricted Obligationsextent requested by the Administrative Agent or required under Swiss law applicable at the relevant time, in order to allow the Administrative Agent (and the other Secured Parties) to obtain a maximum benefit under the Guaranty, any indemnity or other financial undertaking assumed by the Swiss Guarantor under this Agreement, the Swiss Obligor Guarantor shall, and any parent company direct or indirect shareholder of the such Swiss Obligor Guarantor being a party to this Agreement hereto, shall procure that the such Swiss Obligor Guarantor will, promptly upon notification by the Administrative Agent or becoming aware of the requirement under Swiss law, implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow allowing it to perform its obligations promptly make payment(s) under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and Agreement from time to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitytime, including the following:(but not limited to):
(i) preparation of an up-to-date audited balance sheet of the Swiss ObligorGuarantor;
(ii) obtain a confirmation of the auditors of the Swiss Obligor that the relevant amount represents (Guarantor confirming the maximum of) amount of the freely distributable profits capital and reserves;
(iii) conversion approval by a shareholders’ meeting of restricted reserves into profits and reserves freely available for the distribution as dividends Swiss Guarantor of the (resulting) distribution;
(iv) to the extent permitted by mandatory Swiss law);
(iv) revaluation , reduce the Swiss Guarantor’s share capital or reallocation of hidden reserves (to the extent permitted by mandatory Swiss law)freely distributable reserves;
(v) to the extent permitted by applicable law and Swiss accounting standards, write-write up or realize any of its the Swiss Guarantor’s assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, provided that, in case of realization, however, only if realization such assets are not necessary for such the Swiss ObligorGuarantor’s business (nicht betriebsnotwendig);; and
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) taking all such other measures necessary or useful to allow the Swiss Obligor Guarantor to make the payments agreed hereunder and perform the obligations under the Guaranty and any Loan Documents with a minimum of limitations.
Appears in 1 contract
Swiss Limitations. Notwithstanding any other provision of this Clause 21 (Guarantee and Indemnity) anything to the guarantee, indemnity and other obligations of any Swiss Obligor expressed to be assumed contrary in this Agreement shall and any other Transaction Document to which BridgeBio Swiss is or will be limited as followsa party, the obligations of, and any Lien granted by, BridgeBio Swiss (and the respective rights of the Collateral Agent and the Purchasers) under this Agreement and any such other Transaction Document are subject to the following limitations and procedures:
(a) If and to the extent that extent:
(i) BridgeBio Swiss becomes directly or indirectly liable (in particular, by a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee joint and Indemnityseveral liability pursuant to Section 12.14 or otherwise), for guarantee (or indemnity) and/or grants a Lien under any Transaction Document for, and/or to secure, obligations of its Affiliates (other than obligations any of its (direct or indirect wholly owned Subsidiariesindirect) parent companies (upstream liability/Lien) or otherwise obliged to grant economic benefits to its Affiliates sister companies (other than its direct or indirect wholly owned Subsidiariescross-stream liability/Lien) (the “Restricted Obligations”), 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 ; and
(ii) complying with BridgeBio Swiss’s payment under such obligations liability and/or the application of any proceeds from enforcing such Lien to discharge the Restricted Obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), 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 or would otherwise not be permitted under applicable (law, BridgeBio Swiss’s payment obligation under such liability and/or the “Restricted Obligations”), application of any proceeds from enforcing such Lien to be used to discharge the aggregate liability of the Swiss Obligor for Restricted Obligations shall be limited to the maximum amount permitted under applicable law and practice at the time of unrestricted equity capital surplus payment and/or enforcement (including the unrestricted portion “Maximum Amount”); provided that:
(A) the Maximum Amount shall not be less than the profits and reserves of general and statutory reserves, other free reserves, retained earnings and current net profits) BridgeBio Swiss available for distribution as dividends to the shareholders of the determined in accordance with Swiss Obligor law and applicable Swiss accounting principles at the time the Swiss Obligor of payment and/or enforcement;
(B) such limitation 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 time; and
(C) such limitation shall not discharge the free BridgeBio Swiss Obligor from its respective payment obligations (and/or affect the respective Lien granted by BridgeBio Swiss) in excess thereofof the Maximum Amount, but merely postpone the performance date thereof of such payment obligations and/or the time of using proceeds from enforcing such Lien towards discharging the Restricted Obligations until such time or times as performance and/or using enforcement proceeds is again permitted notwithstanding such limitationunder then applicable law.
(b) In respect of Restricted Obligations, each case BridgeBio Swiss’s payments made and/or the proceeds from enforcing a Lien granted by BridgeBio Swiss Obligor shall:
(i) if and used 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 discharge 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) are by law subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Withholding Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
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 an indemnity, guarantee or similar obligation granted by a Loan Party incorporated in Switzerland (ia “Swiss Loan Party”) a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), for Agreement indemnifies or guarantees obligations of its Affiliates (any other Loan Party other than obligations of one of its wholly owned direct or indirect wholly owned Subsidiaries) or otherwise obliged to grant economic benefits to its Affiliates subsidiaries (other than its i.e., obligations of such Swiss Loan Party’s 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 setparent companies (up-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 Reservenstream liabilities) or the payment of a sister companies (constructivecross-stream liabilities)) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss corporate law then applicable (the “Restricted Obligations”) and that the making of a payment in fulfilling such obligations under this clause with respect to Restricted Obligations would under Swiss corporate law (inter alia, prohibiting capital repayments or restricting profit distributions), at the aggregate liability of the Swiss Obligor for Restricted Obligations time payment is due, not be permitted, then such obligations and payment amount shall from time to time be limited to the amount of unrestricted equity permitted to be paid under Swiss corporate law; provided that such limited amount shall at no time be less than such Swiss Loan Party’s distributable capital surplus (including presently being the unrestricted portion of general balance sheet profits and statutory reserves, other free reserves, retained earnings and current net profits) any reserves available for distribution as dividends to the shareholders of the Swiss Obligor distribution) at the time the Swiss Obligor is required to perform or times payment under the Finance Documentsrelevant indemnity or guarantee is requested from the relevant Swiss Loan Party, provided that this is a requirement under applicable Swiss law at that time and further provided that such limitation (as may apply from time to time or not) shall not discharge the (generally or definitively) free such Swiss Obligor Loan Party from its payment obligations hereunder in excess thereof, but merely postpone the performance payment date thereof therefore until such times as performance payment is again permitted notwithstanding such limitation.
(b) . Any and all indemnities and guarantees by a Swiss Loan Party contained in the Loan Documents shall be construed in a manner consistent with the provisos herein contained. In case the Swiss Loan Party who must make a payment in respect of Restricted ObligationsObligations under this Agreement or any other Loan Document is obliged to withhold Swiss Withholding Tax in respect of such payment, each the Swiss Obligor Loan Party shall:
: (i) if and procure 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 the extent required such tax by notification pursuant to applicable law in force at (including double tax treaties) rather than payment of the relevant time mitigate to tax; (ii) if 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 pursuant to paragraph (i) above does not applicable:
(A) subject to any applicable double taxation treatyapply, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. cent (or such other rate as is in force from time to time), or if the notification procedure pursuant to paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at that time) the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of the Restricted Obligations;
(B) Obligations and promptly pay any such deduction taxes to the Swiss Federal Tax Administration; and
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Administrative Agent that such a notification, or as the case may be, deduction has been made and provide the Administrative Agent with evidence that such a deduction 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; and
and (iiiv) to in the extent such case of a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 of Swiss Withholding Tax: (Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person other than a Recipient, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment in respect of Restricted Obligations, will will, as soon as possible after the deduction of the Swiss Anticipatory Taxsuch deduction, (i) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and (ii) pay to the Administrative Agent upon receipt any amount amounts so refunded for application as refunded; or (B) if a further payment Recipient is entitled to a full or partial refund of the Swiss Obligor under Withholding Tax deducted from such payment, and pursuant if requested by the Administrative Agent, provide the Administrative Agent those documents that are required by law and applicable tax treaties to this Agreement.
(c) To be provided by the extent payer of such tax, for each relevant Recipient, to prepare a claim for refund of Swiss Withholding Tax. If a Swiss Obligor Loan Party is required obliged to deduct withhold Swiss Anticipatory Withholding Tax pursuant to in accordance with paragraph (b(g) above, the Recipients shall be entitled to further enforce this guarantee and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest other indemnity granted by such Swiss Obligor Loan Party under this Agreement shall be enforced until and apply proceeds therefrom against the enforcement proceeds equate Restricted Obligations up to an amount which (after making any deduction is equal to that amount which would have been obtained if no withholding of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Withholding Tax had been were required, provided that whereby such enforcement amount (including the increased amount) further enforcements shall in any event always be limited to the maximum amount of the freely disposable shareholder equity pursuant distributable capital of the Swiss Loan Party as set out above in this clause. If and to paragraph the extent requested by the Administrative Agent (aacting at the direction of the Required Lenders) above.
and if and to the extent this is from time to time required under Swiss law (d) In restricting profit distributions), in order to allow the case of Restricted ObligationsRecipients to obtain a maximum benefit under any relevant indemnity or guarantee, the Swiss Obligor Loan Party shall, and any parent company of the Swiss Obligor Loan Party being a party to this Agreement shall procure that the Swiss Obligor Loan Party will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow allowing it to perform its obligations under this Clause 21 promptly make the (Guarantee and Indemnityrequested) with a minimum of limitations and payment(s) hereunder from time to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitytime, including the following:
: (i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
Loan Party; (ii) confirmation of the auditors of the Swiss Obligor Loan Party that the relevant amount represents (the maximum of) freely distributable profits and reserves
profits; (iii) conversion approval by a shareholders’ meeting of restricted reserves into profits and reserves freely available for the distribution as dividends Swiss Loan Party of the (to the extent permitted by mandatory Swiss law);
resulting) profit distribution; (iv) revaluation if the enforcement of hidden reserves (Restricted Obligations would be limited due to the extent permitted by mandatory effects referred to in this clause, then the Swiss law);
(v) Loan Party shall to the extent permitted by applicable law and Swiss accounting standards, write-write up or realize 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 realization, however, only if such assets are not necessary for such the Swiss ObligorLoan Party’s business (nicht betriebsnotwendig);
; and (vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(viiv) all such other measures necessary or useful to allow the Swiss Obligor Loan Party to make the payments and perform the obligations agreed hereunder with a minimum of limitations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Gran Tierra Energy Inc.)
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 Loan Party becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Agreement or any other Loan Document 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 seta Non-off and/or subrogation or its duties to subordinate or waive claims Swiss-Controlled Group Member and (ii) 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 ((verdeckte) Gewinnausschüttung) by such Swiss Obligor Loan Party or would otherwise be restricted under Swiss corporate law then applicable Swiss law (the “"Swiss Restricted Obligations”"), the aggregate liability of the Swiss Obligor Loan Party for Swiss Restricted Obligations shall be limited at such time to the amount of unrestricted equity capital surplus Swiss Capped Amount provided that (including the unrestricted portion of general and statutory reserves, other free reserves, retained earnings and current net profits1) available for distribution as dividends this limitation shall only apply to the shareholders of the Swiss Obligor at the time the Swiss Obligor is required to perform under the Finance Documents, provided that this extent it is a requirement under applicable Swiss law at that the time the Swiss Loan Party is required to perform under the Swiss Restricted Obligations, and further provided that (2) such limitation shall not discharge free the Swiss Obligor Loan Party from its obligations in excess thereofof the Swiss Capped Amount, but merely postpone the performance date thereof therefore until such times as performance is again permitted notwithstanding such limitationpermitted.
(b) In respect of relation to payments made under the Swiss Restricted Obligations, each the Swiss Obligor Loan Party shall:
(i) if procure 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 double tax treaties) rather than payment of the tax (and the Swiss Loan Party shall promptly deliver 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 Administrative Agent a copy of each such notification made);
(and cause its parent and other relevant Affiliates to fully cooperate in any mitigating effortsii) and promptly notify the Agent thereof or, if such a notification procedure is pursuant to subparagraph (i) above does not applicable:
(A) subject to any applicable double taxation treaty, apply: deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. cent (or such other rate as is in force at that time) from any such payment made by it in respect or if the notification procedure pursuant to subparagraph (i) above applies for a part of the Restricted Obligations;
(B) Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law; pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Administrative Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; andand
(iiA) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person other than a Loan Party, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment in respect of Swiss Restricted Obligations, will will, as soon as possible after the deduction of the Swiss Anticipatory Taxsuch deduction, (i) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and (ii) pay to the Administrative Agent upon receipt any amount amounts so refunded for application as refunded; or (B) if a further payment Loan Party is entitled to a full or partial refund of the Swiss Obligor under Withholding Tax deducted from such payment, and pursuant if requested by the Administrative Agent, provide the Administrative Agent those documents that are required by law and applicable treaties to this Agreementbe provided by the payer of such tax, for each relevant Loan Party, to prepare a claim for refund of Swiss Withholding Tax.
(c) To the extent Where a deduction for Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax be made in respect of any payment under this clause pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant Administrative Agent shall be entitled to paragraph (a) above is not utilised, additional security interest further enforce the Guarantee granted by such the Swiss Obligor Loan Party under this Agreement and apply proceeds therefrom against the Swiss Restricted Obligations (and the Swiss Loan Party shall be enforced until withhold Swiss Withholding Tax on the enforcement proceeds equate an additional amount which in accordance with paragraph (b) above) so that after making any required deduction of Swiss Anticipatory Withholding Tax) , the aggregate amount paid net of Swiss Withholding Tax is equal to the amount which would have resulted if no deduction of Swiss Anticipatory Withholding Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited subject always to the maximum amount of freely disposable shareholder equity pursuant to limitations set out in paragraph (a) above. This paragraph (c) is without prejudice to the indemnification obligations of any Loan Party other than the Swiss Loan Party in respect of any amounts deducted on account of Swiss Withholding Tax.
(d) In If and to the case of Restricted Obligationsextent requested by the Administrative Agent, the Swiss Obligor Loan Party shall, and any parent company of the Swiss Obligor Loan Party being a party to this Agreement shall procure that the Swiss Obligor Loan Party will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow allowing it to perform its obligations under this Clause 21 (Guarantee and Indemnitypromptly make the requested payment(s) with a minimum of limitations and from time to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitytime, including the following:
(i) preparation of an up-to-date audited interim balance sheet of the Swiss ObligorLoan Party on the basis of which the Swiss Capped Amount will be determined;
(ii) confirmation of the auditors of the Swiss Obligor Loan Party that the relevant amount represents (the maximum of) freely distributable profits and reservesSwiss Capped Amount has been correctly calculated;
(iii) conversion approval by a shareholders’ meeting of restricted reserves into profits and reserves freely available for the Swiss Loan Party of the distribution as dividends of the relevant requested amount (to within the extent permitted by mandatory limits of the Swiss lawCapped Amount);
(iv) revaluation if the enforcement of hidden reserves (obligations of the Swiss Loan Party were limited due to the extent permitted by mandatory Swiss law);
(v) effects referred to in this clause and to the extent permitted by applicable law and Swiss accounting standardslaw, write-write up or and/or, to the extent permitted under the Loan Documents, realize 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, assets (in case of realization, however, only if such assets are not necessary for such the Swiss Obligor’s Loan Party's business (nicht betriebsnotwendigbetriebsnotwendinge Aktiven);
(vi) approval ), and/or convert share capital and statutory reserves into freely available reserves unless prohibited by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distributionmandatory law; and
(viiv) all such other measures necessary or useful useful, and permitted under applicable Swiss law, to allow the Swiss Obligor Loan Party to make prompt payments or perform promptly the payments agreed hereunder Swiss Restricted Obligations with a minimum of limitations.
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
Swiss Limitations. Notwithstanding anything to the contrary in this Error! Reference source not found., any other provision of this Clause 21 Agreement and any other Loan 321999257 v7 - 108 - Document to which a Swiss Guarantor is or will be a party, the obligations of, and any Lien granted by, the relevant Swiss Guarantor (Guarantee and Indemnitythe respective rights of Administrative Agent, Lenders and/or Secured Parties, respectively) the guaranteeunder this Error! Reference source not found., indemnity and any such other obligations provision of any Swiss Obligor expressed to be assumed in this Agreement shall be limited as followsand any such other Loan Document are subject to the following limitations and procedures:
(a) If and to the extent that extent: (i) a Swiss Obligor Guarantor becomes directly or indirectly liable (in particular, by a joint obligation, guarantee or indemnity) and/or grants a Lien under the Finance Documentsthis Article VII, includingany such other provision of this Agreement and any such other Loan Document for, without limitationand/or to secure, this Clause 21 (Guarantee and Indemnity), for obligations of its Affiliates (other than obligations any of its (direct or indirect wholly owned Subsidiariesindirect) parent companies (upstream liability/Lien) or otherwise obliged to grant economic benefits to its Affiliates sister companies (other than its direct or indirect wholly owned Subsidiaries), includingcross-stream liability/Lien) (collectively, for the avoidance purposes of doubt, this Section 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 “Restricted Obligations”); and (ii) complying with such obligations Swiss Guarantor’s payment under such liability and/or the application of any proceeds from enforcing such Lien to discharge the Restricted Obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), 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 or would otherwise not be permitted under applicable law, then applicable (such Swiss Guarantor’s payment obligation under such liability and/or the “Restricted Obligations”), application of any proceeds from enforcing such Lien to be used to discharge the aggregate liability of the Swiss Obligor for Restricted Obligations shall be limited to the maximum amount permitted under applicable law and practice at the time of unrestricted equity capital surplus payment and/or enforcement (including for the unrestricted portion purposes of general this Section the “Maximum Amount”); provided that:
(A) the Maximum Amount shall not be less than the profits and statutory reserves, other free reserves, retained earnings and current net profits) reserves of the relevant Swiss Guarantor freely available for distribution as dividends to the shareholders of the determined in accordance with Swiss Obligor law and applicable Swiss accounting principles at the time the Swiss Obligor of payment and/or enforcement; (B) such limitation is required to perform under the Finance Documents, provided that this is a requirement under applicable Swiss law at that time time; and further provided that (C) such limitation shall not discharge free the relevant Swiss Obligor Guarantor from its respective payment obligations (and/or affect the respective Lien granted by the relevant Swiss Guarantor) in excess thereofof the Maximum Amount, but merely postpone the performance date thereof of such payment obligations and/or the time of using proceeds from enforcing such Lien towards discharging the Restricted Obligations until such time or times as performance and/or using enforcement proceeds is again permitted notwithstanding such limitationunder then applicable law.
(b) In respect of case a Swiss Guarantor’s payments made and/or the proceeds from enforcing a Lien granted by a Swiss Guarantor and used to discharge the Restricted Obligations, each Obligations are by law subject to Swiss Obligor shallWithholding Tax:
(i) if and to the extent required legally possible, such Swiss Guarantor shall use reasonable efforts to procure that such payment can be made and/or enforcement proceeds can be used without a Swiss Withholding Tax deduction, by applicable law in force at the relevant time mitigate to the extent possible any way of discharging such Swiss Anticipatory Tax Guarantor’s 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 Anticipatory Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction Swiss Withholding Tax by notification pursuant to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further ), rather than by way of payment of the Swiss Obligor under and pursuant to this Agreement.Withholding Tax;
(c) To the extent a If Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax pursuant to be deducted in accordance with paragraph (b) aboveof this Section 7.13, Administrative Agent (as directed and if calculated by the maximum amount of freely disposable shareholder equity pursuant to paragraph (aRequired Lenders) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced entitled to request, until the Maximum Amount is reached, further payments from the relevant Swiss Guarantor and/or apply further proceeds from the enforcement proceeds equate of a Lien to discharge Restricted Obligations up to an amount which (after making any deduction of Swiss Anticipatory Tax) is equal to that amount which would have resulted been obtained if no deduction of Swiss Anticipatory Withholding Tax had been were required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In Upon written request by Administrative Agent (as directed by the case of Required Lenders) at the time when a Swiss Guarantor’s payment is required and/or a Lien granted by a Swiss Guarantor is enforced to discharge the Restricted Obligations, the relevant Swiss Obligor shall, and any parent company of the Swiss Obligor being a party Guarantor shall promptly take and/or cause to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including be taken the following:
: (i) preparation of an up-to-date (interim) audited balance sheet of the relevant Swiss Obligor;
Guarantor; (ii) confirmation of the auditors of the relevant Swiss Obligor Guarantor that the relevant amount represents the Maximum Amount (to the maximum of) freely distributable profits and reserves
extent required by applicable Swiss law); (iii) passing of quotaholders or shareholder resolutions (as applicable) to approve the (resulting) distribution; (iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
; (ivv) revaluation of the relevant Swiss Guarantor’s hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
Sources: First Omnibus Amendment and Loan Party Joinder Agreement (Madrigal Pharmaceuticals, Inc.)
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 the Swiss Obligor Borrower becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Credit Documents for obligations of its Affiliates any other Obligor (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 subsidiaries of the Swiss Obligor’s rights Borrower provided that any minority shareholders of set-off and/or subrogation or its duties to subordinate or waive claims such subsidiaries are not Affiliates of the Swiss Borrower) and (ii) 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 the Swiss Obligor Borrower or would otherwise be restricted under Swiss corporate law then applicable Swiss law (the “Restricted Obligations”), the aggregate liability of the Swiss Obligor Borrower for Restricted Obligations shall be limited at such time to the maximum 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 Borrower’s freely disposable equity in accordance with Swiss law, presently being the time total shareholder equity less the total of (i) the aggregate share capital and (ii) statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves and taking into account (by way of deducting) any upstream or cross-stream loans not granted on arm’s length terms (the “Available Amount”). The Available Amount shall be determined on the basis of an audited annual or interim balance sheet of the Swiss Obligor is required to perform under the Finance Documents, Borrower provided that (1) this limitation shall only apply to the extent it is a requirement under applicable Swiss law at that the time the Swiss Borrower is required to perform under the Restricted Obligations and further provided that (2) such limitation shall not discharge free the Swiss Obligor Borrower from its obligations in excess thereofof the Available Amount, but merely postpone the performance date thereof therefor until such times as performance is again permitted notwithstanding such limitation.permitted.
(b) In respect of relation to payments made under the Restricted Obligations, each the Swiss Obligor Borrower shall:
(i) ensure that such payment can be made without deduction of Swiss Withholding Tax, or at a reduced rate, by discharging the liability to withhold such Swiss Withholding Tax by notification pursuant to applicable law rather than payment of the Swiss Withholding Tax (and the Swiss Borrower shall promptly deliver to the Administrative Agent a copy of each such notification made);
(ii) to the extent such notification procedure does not apply and if and to the extent required by applicable law and subject to any applicable double tax treaties 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:time:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the applicable rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;such payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; andand
(C) notify (and provide evidence to the Company shall ensure Administrative Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; andand
(iiD) to the extent such as soon as possible after a deduction for Swiss Withholding Tax is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax is in a position to be so refunded, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the such Swiss Anticipatory Withholding Tax under all applicable laws (including any applicable law (including double tax treaties) ), and (ii) pay to the Agent upon receipt in case it has received any amount so refunded for application as a further payment refund of the Swiss Obligor under and pursuant Withholding Tax, pay such refund to this Agreementthe Administrative Agent promptly upon receipt thereof.
(c) To the extent Where a deduction for Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax be made pursuant to paragraph (b) above, the Swiss Borrower shall gross-up any payment under this Section 3.13 (and if it shall withhold Swiss Withholding Tax on the maximum grossed-up amount of freely disposable shareholder equity pursuant to in accordance with paragraph (ab) above is not utilisedabove), additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited subject always to the maximum amount of freely disposable shareholder equity pursuant to limitations set out in paragraph 3.13 (a) above. This paragraph (c) is without prejudice to the indemnification obligations of any Obligor other than the Swiss Borrower in respect of any amounts deducted for the account of Swiss Withholding Tax.
(d) In If and to the case of Restricted Obligationsextent requested by the Administrative Agent, the Swiss Obligor Borrower shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow allowing it to perform its obligations under this Clause 21 (Guarantee and Indemnitypromptly make the requested payment(s) with a minimum of limitations and from time to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitytime, including the following:
(i) preparation of an up-to-date audited annual or interim balance sheet of the Swiss Obligor;Borrower to the extent required by Swiss corporate law, on the basis of which the Available Amount will be determined;
(ii) confirmation of the auditors of the Swiss Obligor Borrower that the relevant requested amount represents (does not exceed the maximum of) freely distributable profits and reservesAvailable Amount;
(iii) conversion approval by a shareholders’ meeting of restricted reserves into profits and reserves freely available for the Swiss Borrower of the distribution as dividends of the relevant requested amount (to within the extent permitted by mandatory Swiss lawlimits of the Available Amount);
(iv) revaluation if the enforcement of hidden reserves (obligations of the Swiss Borrower were limited due to the extent permitted by mandatory Swiss law);
(v) effects referred to in this Section 3.13 and to the extent permitted by applicable law and Swiss accounting standardslaw, write-write up or realize 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, assets (in case of realization, however, only if such assets are not necessary for such the Swiss ObligorBorrower’s business (nicht betriebsnotwendigbetriebsnotwendige Aktiven);, and/or convert statutory reserves into freely available reserves to the extent such statutory reserves do not need to be maintained by mandatory law; and
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(viiv) all such other measures necessary or useful useful, and permitted under applicable Swiss laws, to allow the Swiss Obligor Borrower to make the prompt payments agreed hereunder or perform promptly Restricted Obligations with a minimum of limitations.
Appears in 1 contract
Sources: Revolving Facility Credit Agreement (Royal Gold Inc)
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 Subsidiary (for purposes hereunder, a “Swiss Guarantor”) under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), for Agreement or any other Loan Document guarantees or otherwise secures obligations of its Affiliates (other than obligations of one of its wholly owned direct or indirect wholly owned Subsidiaries) or otherwise obliged to grant economic benefits to its Affiliates subsidiaries (other than its i.e. obligations of such Swiss Guarantor’s direct or indirect wholly owned Subsidiariesparent companies (up-stream liabilities) or sister companies (cross-stream liabilities)) (the “Restricted Obligations”) and that the making of a payment in fulfilling the guarantee obligations under this Article XI (The Guarantee), including, for the avoidance of doubt, the granting of any security by the Swiss Obligor this Agreement or any restrictions of the other Loan Document with respect to Restricted Obligations would under Swiss Obligor’s rights of set-off and/or subrogation or its duties to subordinate or waive claims corporate law and practice applicable (ii) complying with such obligations would constitute a repayment of inter alia, prohibiting capital repayments (EinlagerückgewährVerbot der Kapitalrückzahlung), a violation prohibiting violations of the legally protected reserves (gesetzlich geschützte ReservenVerbot der Rückzahlung von gesetzlichen Kapitalreserven) or the payment of a restricting distributions (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss corporate law then applicable (the “Restricted Obligations”Kapitalausschüttungsbeschränkungen)), at the aggregate liability of the Swiss Obligor for Restricted Obligations time payment is due, not be permitted, then such obligations and payment amount shall be limited to the amount of unrestricted permitted to be paid under Swiss corporate law and practice then applicable, currently being such Swiss Guarantor’s freely distributable quota 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 or times of payment under or pursuant to this Article XI (The Guarantee), this Agreement or any other Loan Document is requested from such Swiss Obligor is required to perform under the Finance DocumentsGuarantor, provided that this is a requirement under applicable Swiss law at that time and further provided that such limitation (as may apply from time to time or not) shall not discharge the (generally or definitively) release such Swiss Obligor Guarantor from its payment obligations hereunder in excess thereof, but merely postpone the performance payment date thereof therefore until such times as performance payment is again permitted notwithstanding such limitation.
(b) In respect under then applicable law. The maximum amount of Restricted Obligationsfreely disposable quotaholder equity shall be determined in accordance with Swiss law and applicable Swiss accounting principles, each Swiss Obligor shall:
(i) and, if and to the extent required by applicable law in force at Swiss law, shall be confirmed by the relevant time mitigate to the extent possible any auditors of such Swiss Anticipatory Tax obligations to be levied Guarantor on the basis of an interim audited balance sheet as of that time. Any and all indemnities and other financial undertakings assumed by a Swiss Guarantor under this Agreement shall be construed in a manner consistent with the provisions of this Article XI (The Guarantee), this Agreement or any other Loan Document.
(b) In case a Swiss Guarantor who must make a payment in respect of Restricted Obligations (under this Agreement and cause its parent and other relevant Affiliates is obliged to fully cooperate withhold Swiss Withholding Tax in any mitigating efforts) and promptly notify the Agent thereof orrespect of such payment, if such a notification procedure is not applicableSwiss Guarantor shall:
(Ai) subject use its reasonable best efforts to any 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 double taxation treatytax treaties) rather than payment of the tax;
(ii) if the notification procedure pursuant to paragraph (i) above does not apply, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. 35% (or such other rate as is in force from time to time), or if the notification procedure pursuant to paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at that time) the reduced rate resulting after the discharge of part of such tax by notification under applicable law, from any payment made by it in respect of the Restricted Obligations;
(B) pay any Obligations and forward such deduction amount to the Swiss Federal Tax Administration; and, in the name and for the account of such Swiss Guarantor, within 20 Business Days after presentation of the relevant form of the Swiss Federal Tax Administration (Eidgenössische Steuerverwaltung) to the Administrative Agent;
(Ciii) notify (and the Company shall ensure that the Swiss Obligor will notify) the Administrative Agent that such a notification, or as the case may be, deduction has been made and provide the Administrative Agent with evidence that such a deduction 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; and;
(iiiv) to in the extent such case of a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 of Swiss Withholding Tax:
(Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its reasonable best efforts to ensure that any person other than a Lender, which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment in respect of Restricted Obligations, will will, as soon as possible after the such deduction of the Swiss Anticipatory Tax, (i1) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and (ii2) pay to the Administrative Agent upon receipt any amount amounts so refunded for application as refunded; and
(B) if a further payment Lender is entitled to a full or partial refund of the Swiss Obligor under Withholding Tax deducted from such payment, and if requested by the Administrative Agent, shall provide the Administrative Agent (on its behalf or on behalf of any Lender) those documents that are required by law and applicable tax treaties to be provided by the payer of such tax, for each relevant Lender, to prepare a claim for refund of Swiss Withholding Tax and if a refund is so made to the Administrative Agent or any Lender, the Administrative Agent or such Lender, as applicable, shall transfer all or part of the refund so received to the Swiss Guarantor, if keeping such refund would result in the Administrative Agent and the other Lenders having obtained more than the amount guaranteed by the Guarantors pursuant to this AgreementArticle XI (The Guarantee), this Agreement or any other Loan Document (unjust enrichment).
(c) To the extent If a Swiss Obligor Guarantor is required obliged to deduct withhold Swiss Anticipatory Withholding Tax pursuant to in accordance with paragraph (b) above, the Administrative Agent shall be entitled to further enforce the guarantee and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest any other indemnity granted by such Swiss Obligor Guarantor under this Agreement shall be enforced until and/or further apply proceeds therefrom against the enforcement proceeds equate Restricted Obligations up to an amount which (after making any deduction is equal to that amount which would have been obtained if no withholding of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Withholding Tax had been were required, provided that whereby such enforcement amount (including the increased amount) further enforcements shall in any event always be limited to the maximum amount of the freely disposable shareholder equity pursuant to distributable capital of such Swiss Guarantor as set out in paragraph (a) 0 above.
(d) In If and to the case of Restricted Obligationsextent reasonably requested by the Administrative Agent or if and to the extent required under Swiss mandatory law (with regards to restricting distributions) applicable at the relevant time, in order to allow the Administrative Agent (and the Lenders) to obtain a maximum benefit under this Article XI (The Guarantee), the Swiss Obligor Guarantor shall, and any parent company of the such Swiss Obligor Guarantor being a party to this Agreement shall procure that the such Swiss Obligor Guarantor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow allowing it to perform its obligations under this Clause 21 promptly make the (Guarantee and Indemnityrequested) with a minimum of limitations and payment(s) hereunder from time to allow the Agent (and the Finance Parties) prompt use of the proceeds from securitytime, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss ObligorGuarantor;
(ii) obtain a confirmation of the auditors of the Swiss Obligor that the relevant amount represents (Guarantor confirming the maximum of) amount of the freely distributable profits and reservescapital;
(iii) conversion approval by a quotaholders’ meeting of restricted reserves into profits and reserves freely available for the distribution as dividends Swiss Guarantor of the (to the extent permitted by mandatory Swiss law)resulting) distribution;
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss applicable accounting standards, write-standards write up or realize realise any of its the Swiss Guarantor’s 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 realizationrealisation, however, only if such assets are not necessary for such the Swiss ObligorGuarantor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(viiv) all such other measures reasonably necessary or useful to allow the Swiss Obligor Guarantor to make the payments agreed and perform the obligations hereunder with a minimum of limitations.
Appears in 1 contract
Sources: Credit Agreement (Dynatrace, Inc.)
Swiss Limitations. Notwithstanding any other provision of anything to the contrary in this Clause 21 (Guarantee and Indemnity) Indenture or an applicable Note Guarantee, the guarantee, indemnity and other obligations of any a Swiss Obligor expressed Guarantor and the rights of the Notes Collateral Agent and the Trustee under this Indenture or an applicable Note Guarantee are subject to be assumed in this Agreement shall be limited as follows:
(a) the following limitations: If and to the extent that (i) a Swiss Obligor Guarantor becomes (directly or indirectly) liable under the Finance Documents, including, without limitation, this Clause 21 (Indenture or an applicable Note Guarantee and Indemnity), for obligations of its Affiliates the Issuer (other than obligations of its direct or indirect wholly owned Subsidiariesthe “Restricted Obligations”) 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) 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 corporate law then applicable (the “Restricted Obligations”)applicable, the such Swiss Guarantor’s aggregate liability of the Swiss Obligor for Restricted Obligations under this Indenture or an applicable Note Guarantee shall be limited to the maximum 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 permitted by law at the time the Swiss Obligor Guarantor is required to perform Restricted Obligations under this Indenture or an applicable Note Guarantee (the Finance Documents, provided that this is a requirement under applicable Swiss law at that time and further provided that such “Freely Disposable Amount”).
(a) Such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereof, of the Freely Disposable Amount but merely postpone the performance date thereof until such times as performance when the Swiss Guarantor has again freely disposable equity and if and to the extent such freely disposable equity is again permitted notwithstanding such limitationavailable.
(b) In respect of Restricted ObligationsThe Swiss Guarantor shall take and cause to be taken all and any action, each Swiss Obligor shallto the extent reasonably practical and possible, including, without limitation:
(i1) if and the passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or an applicable Note Guarantee,
(2) the provision of an audited interim balance sheet,
(3) the provision of a confirmation from the auditors of the Swiss Guarantor that a payment of the Swiss Guarantor under this Indenture or an applicable Note Guarantee in an amount corresponding to the extent Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, in order to allow a prompt payment of amounts owed by the Swiss Guarantor under this Indenture or an applicable Note Guarantee as well as the performance by the Swiss Guarantor of other obligations under this Indenture or an applicable Note Guarantee.
(c) If so required by under applicable law in force (including tax treaties) at the relevant time mitigate it is required to make a payment under this Indenture or an applicable Note Guarantee, 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 applicableGuarantor:
(A1) subject shall use its best efforts to any 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 double taxation treaty, law (including tax treaties) rather than payment of the tax;
(2) shall deduct the Swiss Anticipatory Withholding Tax at such rate (being 35% on the date hereof) as in force from time to time if the notification procedure pursuant to (d) (i) above does not apply; or shall deduct the Swiss Withholding Tax at the reduced rate resulting after discharge of 35 per cent. part of such tax by notification if the notification procedure pursuant to sub-paragraph (or such other rate as is in force at that timed) from any payment made by it in respect (i) above applies for a part of the Restricted Obligations;
(B) Swiss Withholding Tax only; and shall pay within the time allowed any such deduction taxes deducted to the Swiss Federal Tax Administration; and
(C3) shall promptly notify (the Notes Collateral Agent and the Company shall ensure that the Swiss Obligor will notify) the Agent Trustee that such a notification or, as the case may be, deduction has been made and provide the Notes Collateral Agent and the Trustee with evidence that such a deduction 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; and.
(iid) to In the extent such case of a deduction is madeof Swiss Withholding Tax, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor Guarantor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, that is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment under this Indenture or an applicable Note Guarantee, will will, as soon as possible after the deduction of the Swiss Anticipatory Tax, such deduction:
(i1) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and ), and
(ii2) pay to the Notes Collateral Agent (for further application by the Trustee) upon receipt any amount so refunded for application as a further payment of refunded.
(e) The Notes Collateral Agent shall co-operate with the Swiss Obligor under and Guarantor to secure such refund.
(f) If a refund is made to a First Lien Notes Secured Party, such First Lien Notes Secured Party shall transfer the refund so received, after the deduction of costs, to the Swiss Guarantor, subject to any right of set-off of such First Lien Notes Secured Party pursuant to this AgreementIndenture or an applicable Note Guarantee.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
Swiss Limitations. Notwithstanding any other provision of anything to the contrary in this Clause 21 (Guarantee and Indemnity) Indenture or an applicable Note Guarantee, the guarantee, indemnity and other obligations of any a Swiss Obligor expressed Guarantor and the rights of the Notes Collateral Agent and the Trustee under this Indenture or an applicable Note Guarantee are subject to be assumed in this Agreement shall be limited as follows:
(a) the following limitations: If and to the extent that (i) a Swiss Obligor Guarantor becomes (directly or indirectly) liable under the Finance Documents, including, without limitation, this Clause 21 (Indenture or an applicable Note Guarantee and Indemnity), for obligations of its Affiliates the Issuer (other than obligations of its direct or indirect wholly owned Subsidiariesthe “Restricted Obligations”) 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) 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 corporate law then applicable (the “Restricted Obligations”)applicable, the such Swiss Guarantor’s aggregate liability of the Swiss Obligor for Restricted Obligations under this Indenture or an applicable Note Guarantee shall be limited to the maximum 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 permitted by law at the time the Swiss Obligor Guarantor is required to perform Restricted Obligations under this Indenture or an applicable Note Guarantee (the Finance Documents, provided that this is a requirement under applicable Swiss law at that time and further provided that such “Freely Disposable Amount”).
(a) Such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereof, of the Freely Disposable Amount but merely postpone the performance date thereof until such times as performance when the Swiss Guarantor has again freely disposable equity and if and to the extent such freely disposable equity is again permitted notwithstanding such limitationavailable.
(b) In respect of Restricted ObligationsThe Swiss Guarantor shall take and cause to be taken all and any action, each Swiss Obligor shallto the extent reasonably practical and possible, including, without limitation:
(i1) if and the passing of any shareholders’ resolutions to the extent required by approve any payment or other performance under this Indenture or an 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:Note Guarantee,
(A2) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax at the rate provision of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;an audited interim balance sheet,
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify3) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result provision of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds confirmation from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor Guarantor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting payment of the Swiss Obligor Guarantor under this Indenture or an applicable Note Guarantee 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 (resulting) profit distribution; and
(vii) all such other measures necessary or useful share capital and legal reserves, in order to allow a prompt payment of amounts owed by the Swiss Obligor to make Guarantor under this Indenture or an applicable Note Guarantee as well as the payments agreed hereunder with a minimum performance by the Swiss Guarantor of limitationsother obligations under this Indenture or an applicable Note Guarantee.
Appears in 1 contract
Sources: Indenture (Skechers Usa Inc)
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 Loan Party becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Agreement or any other Loan Document for obligations of its Affiliates any other Loan Party (other than obligations of its the wholly owned direct or indirect wholly owned Subsidiariessubsidiaries of such Swiss Loan Party) 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 "Restricted Obligations") and (ii) 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 Loan Party or would otherwise be restricted under Swiss corporate law and practice then applicable (the “Restricted Obligations”)applicable, the such Swiss Loan Party's aggregate liability of the Swiss Obligor for Restricted Obligations shall be limited to not exceed 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 Loan Party'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 Swiss Obligor is required "Freely Disposable Amount").
(b) This limitation shall only apply to perform under the Finance Documents, provided that this extent it is a requirement under applicable Swiss law at that the time and further provided that such the applicable Swiss Loan Party is required to perform Restricted Obligations under the Loan Documents. Such limitation shall not discharge free the applicable Swiss Obligor Loan Party from its obligations in excess thereofof the Freely Disposable Amount, but merely postpone the performance date thereof until such times as performance is when such Swiss Loan Party has again permitted notwithstanding such limitation.
(b) In respect of Restricted Obligations, each Swiss Obligor shall:
(i) if and freely disposable equity. The limitation set out in this Section shall not apply to the extent required by applicable law in force at the relevant time mitigate to the extent possible a Swiss Loan Party guarantees or otherwise secures 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 Anticipatory Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax amounts borrowed under any applicable law (including double tax treaties) and (ii) pay Loan Document which are on-lent to the Agent upon receipt any amount so refunded for application as a further payment such Swiss Loan Party or to wholly owned direct or indirect subsidiaries of the such Swiss Obligor under and pursuant to this AgreementLoan Party.
(c) To If the extent enforcement of the obligations of a Swiss Obligor is required Loan Party under the Loan Documents would be limited due to deduct Swiss Anticipatory Tax pursuant the effects referred to paragraph (b) abovein this Agreement, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement Loan Party shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been requiredfurther, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standardsstandards and upon request by Agent, write-(i) write up or realize 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 realizationsale, however, only if such assets are not necessary for such Swiss Obligor’s Loan Party'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.
(vid) approval Each Swiss Loan Party and any direct holding company of such Swiss Loan Party which is a party to a Loan Document shall procure that such Swiss Loan Party 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 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 a shareholders’ meeting such Swiss Loan Party of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of such Swiss Obligor Loan Party that a payment of such Swiss Loan Party 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 (resultingv) profit distribution; and
(vii) all the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time such Swiss Loan Party is required to make a payment or perform other measures necessary obligations under this Agreement or useful any other Loan Document, in order to allow the Swiss Obligor a prompt payment in relation to make the payments agreed hereunder 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, each Swiss Loan Party:
(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 Agent that such notification or, as the case may be, deduction has been made, and provide 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, each Swiss Loan Party 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 Agent upon receipt any amount so refunded.
(g) Agent shall co-operate with each Swiss Loan Party to secure such refund.
(h) To the extent any Swiss Loan Party is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, such Swiss Loan Party 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 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 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 an Agent-Related Person, a Lender-Related Person, the Issuing Bank or a Participant, as applicable, such party shall transfer the refund so received to the applicable Swiss Loan Party, subject to any right of set-off of such party pursuant to the Loan Documents. [Signature pages to follow.]
Appears in 1 contract
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 a Guarantor incorporated in Switzerland (ia "Swiss Guarantor") a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “"Restricted Obligations”"), the aggregate liability of the Swiss Obligor Guarantor 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 and, to the extent permitted #10394456/1 by then applicable law, current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents"Maximum Amount"), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
(b) Immediately after having been requested to perform the Restricted Obligations under the Finance Documents, the Swiss Guarantor shall (i) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Facility Agent or required under then applicable Swiss law, provide the Facility Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Facility Agent (such as board and shareholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Facility Agent.
(c) In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
(i) if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Facility Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and;
(ii) to the extent such as soon as possible after a deduction for Swiss Withholding Tax is made, not be obliged to either gross-up in accordance with Clause 16.2 made as required by applicable law:
(Tax gross-upA) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory Withholding Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, is in a position to be so refunded; and
(iB) request a in case it has received any refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) Withholding Tax, pay such refund to the Agent promptly upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) abovethereof.
(d) In For the case avoidance of Restricted Obligationsdoubt, where a deduction for Swiss Withholding Tax is required pursuant to paragraph (c) above, the Swiss Obligor shall, and any parent company obligations of the Swiss Obligor being a party to Obligors under Clause 6.6 (Minimum interest), Clause 10.2 (Taxes), Clause 19.9 (Grossing-up) and Clause 10.3 (Tax indemnity) of this Agreement shall procure that the Swiss Obligor willremain applicable, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (save to the extent permitted by mandatory Swiss law);and for as long as that would cause the Maximum Amount to be exceeded.
(ive) revaluation If the enforcement of hidden reserves (Restricted Obligations would be limited due to the extent permitted by mandatory effects referred to in this Clause 11.10.7, then the Swiss law);
Guarantor shall (vi) to the extent permitted by applicable law and Swiss accounting standardslaw, write-up or revalue and/or realize any of its assets that are shown in on its balance #10394456/1 sheet with a book value that is significantly lower than the market value of the such assets, in case of realization, however, only if such assets are not necessary for such Swiss Obligor’s business and (nicht betriebsnotwendig);
(viii) approval by a shareholders’ meeting of reduce its share capital to the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitationsallowed under then applicable law.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
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 Loan Party becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Loan Documents for an obligations of its Affiliates any Affiliate (other than obligations of its direct or indirect wholly owned any of that Swiss Loan Party's 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) 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 then applicable Swiss corporate law then applicable (the “Restricted Obligations”), the aggregate liability fulfilment of the any obligation of a Swiss Obligor for Restricted Obligations Loan Party shall be limited to the maximum 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 permitted by law at the time of fulfilment or enforcement (as the Swiss Obligor is required to perform under case may be) (such maximum amount, the Finance Documents“Maximum Amount” and the corresponding restriction, provided that this is a requirement under applicable Swiss law at that time and further provided that such limitation the “Limitation”). The Limitation shall not discharge release any Swiss Loan Party from the Swiss Obligor from fulfilment of [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. its obligations or the application of enforcement proceeds in excess thereofof the Maximum Amount, but merely postpone the performance date thereof until such times time as performance it is again permitted notwithstanding such limitation.
(b) In respect of Restricted Obligations, each the Limitation. A Swiss Obligor shall:
(i) if Loan Party shall take all action and to the extent required by applicable law in force at the relevant time mitigate to the extent possible any Swiss Anticipatory Tax obligations cause all action to be levied on taken to enable the Restricted Obligations (and cause fulfilment of its parent and other relevant Affiliates to fully cooperate in any mitigating efforts) and promptly notify obligations or the Agent thereof or, if such a notification procedure is not applicable:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax at the rate application of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will enforcement proceeds as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate in an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been requiredas large as possible notwithstanding the Limitation. In particular, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standardsstandards and upon request by the Agent, write-each Swiss Loan Party shall (a) write up or realize 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 realizationa sale, however, only if such assets are not necessary for such the Swiss Obligor’s Loan Party's business (nicht betriebsnotwendig);
; (vib) approval reduce its share capital to the minimum allowed under then applicable law; (c) to the extent that the fulfilment of any obligation or the application of proceeds from the enforcement to satisfy Restricted Obligations are subject to Swiss Withholding Tax, the Swiss Loan Party (i) shall: (A) use its best efforts to procure that the fulfilment of such obligation or the application of such enforcement proceeds can be made without deduction of Swiss Withholding Tax by discharging the liability of such tax by notification pursuant to applicable law rather than payment of the tax, (B) if the notification procedure pursuant to clause (i)(A) above does not apply, deduct the Swiss Withholding Tax at such rate as in force from time to time or as provided by any relevant provision of applicable double tax treaties, from the respective amount to be paid and promptly pay any such Swiss Withholding Tax deducted to the Swiss Federal Tax Administration; (C) and provide the Agent with evidence that such a shareholders’ meeting notification of the Swiss Obligor Federal Tax Administration has been made or, as the case may be, such Swiss Withholding Tax deducted has been paid to the Swiss Federal Tax Administration, (ii) shall use its best efforts to procure that any person who is entitled to a full or partial refund of the Swiss Withholding Tax deducted pursuant to this clause (resultingii)(c): (A) profit distribution; and
(vii) all such other measures necessary or useful to allow request a refund of the Swiss Obligor Withholding Tax under applicable law as soon as possible; and (B) pay to make the payments agreed hereunder with Agent upon receipt any amount so refunded to cover any outstanding part of the Restricted Obligation; (C) notwithstanding anything to the contrary in any Loan Document, shall not be required to gross up, indemnify or hold harmless any Loan Party for the deduction of Swiss Withholding Tax in an amount exceeding the Maximum Amount, provided that this should not in any way limit any obligations of any other Loan Party under the Loan Documents to indemnify the Lenders in respect of the deduction of the Swiss Withholding Tax. For the avoidance of doubt, if and to the extent that a minimum Swiss Loan Party, including MoonLake AG, becomes liable under the Loan Documents for the obligations of limitationsany of that Swiss Loan Party's Wholly-Owned Subsidiaries, the Limitation under this Section 11.1 does not apply.
Appears in 1 contract
Sources: Loan and Security Agreement (MoonLake Immunotherapeutics)
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) a. If and to the extent that a Guarantor incorporated in Switzerland (ia "Swiss Guarantor") a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “"Restricted Obligations”"), the aggregate liability of the Swiss Obligor Guarantor 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 and, to the extent permitted by then applicable law, current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents"Maximum Amount"), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
b. Immediately after having been requested to perform the Restricted Obligations under the Finance Documents, the Swiss Guarantor shall (bi) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Facility Agent or required under then applicable Swiss law, provide the Facility Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Facility Agent (such as board and shareholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Facility Agent.
c. In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
(i) i. if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, 1. deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) 2. pay any such deduction to the Swiss Federal Tax Administration; and
(C) 3. notify (and provide evidence to the Company shall ensure Facility Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and;
(ii) to the extent such . as soon as possible after a deduction for Swiss Withholding Tax is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) in relation to any such payment made as required by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in forceapplicable law:
1. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory Withholding Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request is in a position to be so refunded; and
2. in case it has received any refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) Withholding Tax, pay such refund to the Agent promptly upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreementthereof.
(c) To d. For the extent avoidance of doubt, where a deduction for Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax pursuant to paragraph (bc) above, the obligations of the Obligors under Clause 6.5 (Minimum interest), Clause 10.2 (Taxes), Clause 19.9 (Grossing-up) and if the maximum amount Clause 10.3 (Tax indemnity) of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been requiredremain applicable, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (save to the extent permitted by mandatory Swiss law);and for as long as that would cause the Maximum Amount to be exceeded.
(iv) revaluation e. If the enforcement of hidden reserves (Restricted Obligations would be limited due to the extent permitted by mandatory effects referred to in this Clause 11.10.7, then the Swiss law);
Guarantor shall (vi) to the extent permitted by applicable law and Swiss accounting standardslaw, write-up or revalue and/or realize any of its assets that are shown in on its balance sheet with a book value that is significantly lower than the market value of the such assets, in case of realization, however, only if such assets are not necessary for such Swiss Obligor’s business and (nicht betriebsnotwendig);
(viii) approval by a shareholders’ meeting of reduce its share capital to the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitationsallowed under then applicable law.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Swiss Limitations. Notwithstanding any other provision of this Clause 21 (Guarantee and Indemnity) anything to the guarantee, indemnity and other obligations of any Swiss Obligor expressed to be assumed contrary in this Agreement shall and any other Transaction Document to which BridgeBio Swiss is or will be limited as followsa party, the obligations of, and any Lien granted by, BridgeBio Swiss (and the respective rights of the Collateral Agent and the Purchasers) under this Agreement and any such other Transaction Document are subject to the following limitations and procedures:
(a) If and to the extent that extent:
(i) BridgeBio Swiss becomes directly or indirectly liable (in particular, by a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee joint and Indemnityseveral liability pursuant to Section 12.14 or otherwise), for guarantee (or indemnity) and/or grants a Lien under any Transaction Document for, and/or to secure, obligations of its Affiliates (other than obligations any of its (direct or indirect wholly owned Subsidiariesindirect) parent companies (upstream liability/Lien) or otherwise obliged to grant economic benefits to its Affiliates sister companies (other than its direct or indirect wholly owned Subsidiariescross-stream liability/Lien) (the “Restricted Obligations”), 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 ; and
(ii) complying with BridgeBio Swiss’s payment under such obligations liability and/or the application of any proceeds from enforcing such Lien to discharge the Restricted Obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), 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 or would otherwise not be permitted under applicable (law, BridgeBio Swiss’s payment obligation under such liability and/or the “Restricted Obligations”), application of any proceeds from enforcing such Lien to be used to discharge the aggregate liability of the Swiss Obligor for Restricted Obligations shall be limited to the maximum amount permitted under applicable law and practice at the time of unrestricted equity capital surplus payment and/or enforcement (including the unrestricted portion “Maximum Amount”); provided that:
(A) the Maximum Amount shall not be less than the profits and reserves of general and statutory reserves, other free reserves, retained earnings and current net profits) BridgeBio Swiss available for distribution as dividends to the shareholders of the determined in accordance with Swiss Obligor law and applicable Swiss accounting principles at the time the Swiss Obligor of payment and/or enforcement;
(B) such limitation 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 time; and
(C) such limitation shall not discharge the free BridgeBio Swiss Obligor from its respective payment obligations (and/or affect the respective Lien granted by BridgeBio Swiss) in excess thereofof the Maximum Amount, but merely postpone the performance date thereof of such payment obligations and/or the time of using proceeds from enforcing such Lien towards discharging the Restricted Obligations until such time or times as performance and/or using enforcement proceeds is again permitted notwithstanding such limitationunder then applicable law.
(b) In respect of case BridgeBio Swiss’s payments made and/or the proceeds from enforcing a Lien granted by BridgeBio Swiss and used to discharge the Restricted Obligations, each Obligations are by law subject to Swiss Obligor shallWithholding Tax:
(i) if and to the extent required legally possible, BridgeBio Swiss shall use reasonable efforts to procure that such payment can be made and/or enforcement proceeds can be used without a Swiss Withholding Tax deduction, by way of discharging BridgeBio Swiss’s obligations in respect of Swiss Withholding Tax by notification pursuant to applicable law in force at the relevant time mitigate (including tax treaties), rather than by way of payment of Swiss Withholding Tax;
(ii) if and 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 pursuant to sub-paragraph (b)(i) of this Section 13.13. is not applicablelegally available:
(A) in the event of BridgeBio Swiss’s payments: BridgeBio Swiss shall deduct Swiss Withholding Tax at such rate (currently [***]% at the date of this Agreement, subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax at the rate of 35 per cent. (or such other rate tax treaties) as is in force at that time) from time to time from any such payment made by it in respect and promptly pay the amount of such Swiss Withholding Tax to the Restricted Obligations;Tax Swiss Federal Tax Administration and provide evidence of such payment to the Collateral Agent and the Purchasers; and/or
(B) pay in the event of application of proceeds from enforcing Liens: The Collateral Agent (as directed by the Required Purchasers) shall deduct Swiss Withholding Tax at such rate (currently [***]% at the date of this Agreement, subject to applicable tax treaties) as is in force from time to time from any such deduction enforcement proceeds and pay (in the name and for account of BridgeBio Swiss) the amount of such Swiss Withholding Tax to the Tax Swiss Federal Tax Administration within [***] after presentation by BridgeBio Swiss to the Collateral Agent and the Purchasers of the relevant form of the Swiss Federal Tax Administration, it being agreed that BridgeBio Swiss shall promptly complete the relevant form of the Swiss Federal Tax Administration and submit it to the Collateral Agent and the Purchasers for approval (in case of the Collateral Agent, as directed by the Required Purchasers), such approval not to be unreasonably withheld;
(iii) BridgeBio Swiss shall promptly notify the Collateral Agent and the Purchasers upon, as applicable, making the notification pursuant to sub-paragraph (b)(i) of this Section 13.13 and/or the Swiss Withholding Tax payment pursuant to sub-paragraph (b)(ii)(A) of this Section 13.13, in each case accompanied with appropriate documentary evidence; and
(Civ) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such in case of a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the of Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is madeWithholding Tax, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The BridgeBio Swiss Obligor shall use its best reasonable efforts to ensure that any person which is(other than the Collateral Agent and the Purchasers and/or Secured Parties, as a result of a deduction of Swiss Anticipatory Tax, respectively) who is entitled to a full or partial refund of the Swiss Anticipatory TaxWithholding Tax deducted from such payment or enforcement proceeds will, will as soon as possible after the deduction of the Swiss Anticipatory Tax, such deduction:
(iA) request a refund of the Swiss Anticipatory Withholding Tax under any applicable law (including double tax treaties) and ); and
(iiB) pay to the Collateral Agent and/or the Purchasers, as applicable, upon receipt any amount so refunded refunded, and, if the Collateral Agent or a Purchaser and/or a Secured Party, respectively, is entitled to a full or partial refund of Swiss Withholding Tax deducted from such payment or enforcement proceeds, BridgeBio Swiss shall promptly upon request provide the Collateral Agent or the relevant Purchaser and/or Secured Party, respectively, with the documents required by law (including tax treaties) to be provided by the payer of Swiss Withholding Tax in order to enable the Collateral Agent (as directed by the Required Purchasers) or the relevant Purchaser and/or Secured Party, respectively, to prepare a claim for application as a further payment refund of the Swiss Obligor under and pursuant to this AgreementWithholding Tax.
(c) To the extent a If Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax pursuant to be deducted in accordance with paragraph (b) aboveof this Section 13.13, the Collateral Agent (as directed and if calculated by the maximum amount of freely disposable shareholder equity pursuant to paragraph (aRequired Purchasers) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced entitled to request, until the Maximum Amount is reached, further payments from BridgeBio Swiss and/or apply further proceeds from the enforcement proceeds equate of a Lien to discharge Restricted Obligations up to an amount which (after making any deduction of Swiss Anticipatory Tax) is equal to that amount which would have resulted been obtained if no deduction of Swiss Anticipatory Withholding Tax had been were required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In Upon written request by the case of Required Purchasers at the time when BridgeBio Swiss’s payment is required and/or a Lien granted by BridgeBio Swiss is enforced to discharge the Restricted Obligations, the BridgeBio Swiss Obligor shall, and any parent company of the Swiss Obligor being a party shall promptly take and/or cause to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including be taken the following:
(i) preparation of an up-to-date (interim) audited balance sheet of the Swiss ObligorBridgeBio Swiss;
(ii) confirmation of the auditors of the BridgeBio Swiss Obligor that the relevant amount represents the Maximum Amount (to the maximum of) freely distributable profits and reservesextent required by applicable Swiss law);
(iii) passing of quotaholders’ resolutions to approve the (resulting) distribution;
(iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(ivv) revaluation of BridgeBio Swiss’s hidden reserves (to the extent permitted by mandatory Swiss law);
(vvi) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize realization any of its BridgeBio Swiss’s 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 realization, however, only if such assets are not necessary for such Swiss ObligorBridgeBio Swiss’s business (nicht betriebsnotwendig) (in each case, to the extent permitted by applicable law and Swiss accounting standards);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures that are necessary or useful to allow BridgeBio Swiss’s payments and/or the Swiss Obligor to make the payments agreed hereunder application of enforcement proceeds with a minimum of limitations.
(e) The limitations and procedures of this Section 13.13 shall also apply to any other obligation of BridgeBio Swiss under any Transaction Document to grant economic benefits to of any of its (direct or indirect) parent companies (upstream) or sister companies (cross-stream), including, for the avoidance of doubt, any waiver of set-off or subrogation rights or any subordination or waiver of intra-group claims.
Appears in 1 contract
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 Loan Party becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Agreement or any other Loan Document 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 seta Non-off and/or subrogation or its duties to subordinate or waive claims Swiss-Controlled Group Member and (ii) 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 ((verdeckte) Gewinnausschüttung) by such Swiss Obligor Loan Party or would otherwise be restricted under Swiss corporate law then applicable Swiss law (the “"Swiss Restricted Obligations”"), the aggregate liability of the Swiss Obligor Loan Party for Swiss Restricted Obligations shall be limited at such time to the amount of unrestricted equity capital surplus Swiss Capped Amount provided that (including the unrestricted portion of general and statutory reserves, other free reserves, retained earnings and current net profits1) available for distribution as dividends this limitation shall only apply to the shareholders of the Swiss Obligor at the time the Swiss Obligor is required to perform under the Finance Documents, provided that this extent it is a requirement under applicable Swiss law at that the time the Swiss Loan Party is required to perform under the Swiss Restricted Obligations, and further provided that (2) such limitation shall not discharge free the Swiss Obligor Loan Party from its obligations in excess thereofof the Swiss Capped Amount, but merely postpone the performance date thereof therefore until such times as performance is again permitted notwithstanding such limitationpermitted.
(b) In respect of relation to payments made under the Swiss Restricted Obligations, each the Swiss Obligor Loan Party shall:
(i) if procure 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 double tax treaties) rather than payment of the tax (and the Swiss Loan Party shall promptly deliver 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 Administrative Agent a copy of each such notification made);
(and cause its parent and other relevant Affiliates to fully cooperate in any mitigating effortsii) and promptly notify the Agent thereof or, if such a notification procedure is pursuant to subparagraph (i) above does not applicable:
(A) subject to any applicable double taxation treaty, apply: • deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. cent (or such other rate as is in force at that time) from any such payment made by it in respect or if the notification procedure pursuant to subparagraph (i) above applies for a part of the Restricted Obligations;
(B) Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law; • pay any such deduction to the Swiss Federal Tax Administration; and
(C) • notify (and provide evidence to the Company shall ensure Administrative Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
Sources: Credit Agreement (Movado Group Inc)
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 any obligations assumed (iincluding by granting a guaranty, assuming indemnity or other obligations, including joint and several liability, and subordinating any claims) or any security interest granted by a Swiss Obligor becomes liable Guarantor under the Finance Documentsthis Agreement or any other Loan Document guarantee, including, without limitation, this Clause 21 (Guarantee and Indemnity), for secure or otherwise benefit 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)Subsidiaries (the “Restricted Obligations”) and if and to the extent the payment under, includingor the enforcement of, 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 or using the proceeds from the enforcement of such security interest to discharge the Restricted Obligations constitutes a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung) by such under then applicable Swiss Obligor corporate law or would otherwise not be restricted under Swiss corporate law permitted by then applicable (the “Restricted Obligations”)mandatory Swiss law, the aggregate liability payment under, or the enforcement of, such obligations or using the proceeds from the enforcement of such security interest to be used to discharge 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 and, to the extent permitted by then applicable law, current net profits) available for distribution as dividends to the shareholders of such Swiss Guarantor (the Swiss Obligor at the time the Swiss Obligor is required to perform under the Finance Documents“Maximum Amount”), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge the free such Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance or the enforcement date thereof of those obligations until such time or times as performance or enforcement is again permitted notwithstanding such limitation.
(b) In respect of Restricted Obligationsunder then applicable law. The Maximum Amount shall be determined in accordance with Swiss law and applicable Swiss accounting principles, each Swiss Obligor shall:
(i) and, if and to the extent required by applicable Swiss law, shall be confirmed by the auditors of the relevant Swiss Guarantor on the basis of an interim audited balance sheet as of that time.
(b) Immediately after having been requested to perform the Restricted Obligations under the Loan Documents, such Swiss Guarantor shall, if and to the extent requested by the Administrative Agent or required under then applicable Swiss law, provide the Administrative Agent with an interim balance sheet audited by the statutory auditors of such Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Administrative Agent (such as (i) board and shareholders’ resolutions to approve the payment or use of the enforcement proceeds, which may be required as a matter of Swiss mandatory 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 payment is not applicable:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax requested or at the rate time of 35 per cent. (enforcement in order to allow a prompt payment or such other rate as is in force at that time) from any payment made by it in respect use of the Restricted Obligations;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
enforcement proceeds, (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) in relation to receipt of any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by confirmations from such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the Guarantor’s statutory auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
Maximum Amount, (iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
, (iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
, and (v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.applicable
Appears in 1 contract
Sources: Financing Agreement (Apellis Pharmaceuticals, Inc.)
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 a Guarantor incorporated in Switzerland (ia "Swiss Guarantor") a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “"Restricted Obligations”"), the aggregate liability of the Swiss Obligor Guarantor 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 and, to the extent permitted by then applicable law, current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents"Maximum Amount"), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
(b) Immediately after having been requested to perform the Restricted Obligations under the Finance Documents, the Swiss Guarantor shall (i) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Facility Agent or required under then applicable Swiss law, provide the Facility Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Facility Agent (such as board and shareholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Facility Agent.
(c) In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
(i) if and to the extent required by applicable law and subject to any applicable double tax treaties in force at the relevant time mitigate to the extent possible any Swiss Anticipatory Tax obligations to be levied on the Restricted Obligations time: #3462336/1 32 (and cause its parent and other relevant Affiliates to fully cooperate in any mitigating efforts85) 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 Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)
Swiss Limitations. Notwithstanding any (a) To the extent that Quotient Suisse grants its guaranty hereunder to secure obligations other provision than (x) its own Obligations or (y) Obligations of this Clause 21 one of its subsidiaries, (Guarantee and Indemnityi.e. to secure Obligations of its (direct or indirect) the guaranteeparent companies (up-stream security) or its sister companies (cross-stream security)), indemnity and other obligations of any Swiss Obligor expressed to be assumed in this Agreement shall be limited as followsQuotient Suisse shall:
(ai) If and only be liable for such payment obligation to the extent that (i) a Swiss Obligor becomes liable under and in 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 maximum amount (the “Restricted ObligationsSwiss Available Amount”) of its profits and reserves available for distribution at the point in time Quotient Suisse's obligations become due (in each case in accordance with art. 675(2) and art 671(1), (2) and (3) Swiss Code of Obligations), provided that such limitation shall not free Quotient Suisse from its obligations in excess thereof, but merely postpone the aggregate liability performance date therefore until such times as performance is again permitted notwithstanding such limitation. The Swiss Available Amount shall include the portion of the Swiss Obligor for Restricted Obligations shall be limited to the amount of unrestricted equity capital surplus (including the any unrestricted portion of legal general and statutory reserves, restricted reserves which may be converted into free reserves, other free reserves, retained earnings and current net profits) which is freely available (as the case may be after conversion) for distribution to shareholders under Swiss law. Quotient Suisse shall at the request of the Agent take all measures legally permissible required to ensure that the Swiss Available Amount is as dividends to high as possible under Swiss law, including, without limitation by converting restricted reserves into distributable reserves;
(ii) provide, within sixty (60) days from the shareholders request of the Agent, (a) an interim audited balance sheet, (b) a determination of the Swiss Obligor Available Amount based on such interim audited balance sheet and (c) a confirmation from the auditors of Quotient Suisse that the Swiss Available Amount complies with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves;
(iii) pay to the Agent the Swiss Available Amount and, if required under applicable law (including double-taxation treaties), deduct from any such payments Swiss anticipatory tax (withholding tax) 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 rate of 35% (or such limitation shall not discharge the Swiss Obligor from its obligations in excess thereof, but merely postpone the performance date thereof until such times other rate 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 from 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 effortstime) 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 Anticipatory Tax at the rate of 35 per cent:
1. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
Sources: Credit, Security and Guaranty Agreement (Quotient LTD)
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 a Guarantor incorporated in Switzerland (ia “Swiss Guarantor”) a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Loan Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “Restricted Obligations”), the aggregate liability of the Swiss Obligor Guarantor 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 Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents“Maximum Amount”), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
(b) Immediately after having been requested to perform the Restricted Obligations under the Loan Documents, the Swiss Guarantor shall (i) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Collateral Agent or required under then applicable Swiss law, provide the Collateral Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Collateral Agent (such as managing director and quotaholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Collateral Agent.
(c) In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
: (i) if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Collateral Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreement.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standards, write-up or realize 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 realization, however, only if such assets are not necessary for such Swiss Obligor’s business (nicht betriebsnotwendig);
(vi) approval by a shareholders’ meeting of the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitations.
Appears in 1 contract
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) obligations of a Swiss Obligor becomes liable Guarantor under the Finance Loan Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), are for obligations of its Affiliates (other than obligations the benefit of its direct or indirect wholly owned Subsidiaries) or otherwise obliged to grant economic benefits to its Affiliates 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 subsidiaries) and (ii) that 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 corporate law then applicable (the “Restricted Obligations”), the following provisions shall apply:
(b) The aggregate liability of the a Swiss Obligor Guarantor for Restricted Obligations under the Loan Documents, including, without limitation, under the guarantee, shall be limited to the extent and in the maximum amount of unrestricted its freely disposable equity capital surplus (including the unrestricted portion of general and statutory reserves, other free reserves, retained earnings and current net profitsfrei verfügbares Eigenkapital) available for distribution as dividends to the shareholders of the Swiss Obligor at the point in time such Swiss Guarantor’s obligations fall due (the Swiss Obligor is required to perform under the Finance Documents“Available Amount”), provided that this is a requirement under applicable Swiss law and practice at that time and further provided that such limitation (as may apply from time to time or not) shall not discharge the (generally or definitively) release such Swiss Obligor Guarantor from its obligations performing Restricted Obligations hereunder in excess thereof, but merely postpone the performance date thereof therefor until such times as performance is when the Swiss Guarantor has again permitted notwithstanding such limitation.
(b) In respect of Restricted Obligations, each Swiss Obligor shall:
(i) freely disposable equity and 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 freely disposable equity is not applicable:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligations;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and the Company shall ensure that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and
(ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, entitled to a full or partial refund of the Swiss Anticipatory Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, (i) request a refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) pay to the Agent upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreementavailable.
(c) To the extent a Swiss Obligor is required to deduct Swiss Anticipatory Tax pursuant to paragraph (b) above, and if the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until If the enforcement proceeds equate of the obligations of the Swiss Guarantor under the Loan Documents or an amount which (after making any deduction of Swiss Anticipatory Tax) applicable guarantee would have resulted if no deduction of Swiss Anticipatory Tax had been required, provided that such enforcement amount (including the increased amount) shall in any event be limited due to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligationseffects set out hereunder, the Swiss Obligor shallGuarantor shall further, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law);
(iv) revaluation of hidden reserves (to the extent permitted by mandatory Swiss law);
(v) to the extent permitted by applicable law and Swiss accounting standardsstandards and upon request by the Collateral Agent, write-(i) write up or realize 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 realizationsale, however, only if such assets are not necessary for such the Swiss ObligorGuarantor’s business (nicht betriebsnotwendig)) and/or (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Loan Documents.
(d) Immediately after having been requested to perform Restricted Obligations under the Loan Documents, a Swiss Guarantor shall, and any parent company of such Swiss Guarantor shall procure that such Swiss Guarantor will:
(i) if and to the extent requested by the Collateral Agent or required under then applicable Swiss law, provide the Collateral Agent, within 30 Business Days, with (a) an interim up-to-date balance sheet audited by its statutory auditors, (b) the determination by the statutory auditors of the Available Amount based on such interim audited balance sheet and (c) a confirmation from the statutory auditors of such Swiss Guarantor that the Available Amount complies with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves;
(viii) approval by a shareholders’ meeting take such further corporate and other action which may be necessary at the time (such as board and shareholder approvals and the receipt of the Swiss Obligor of the (resultingany confirmations from its statutory auditors) profit distribution; and
(vii) all such other measures necessary or useful in order to allow a prompt payment under the Swiss Obligor to make the payments agreed hereunder Loan Documents with a minimum of limitations; and/or
(iii) immediately after confirming the Available Amount in accordance with sub-paragraph (i) above, procure that any amounts received or collected by the Collateral Agent under and in connection with Restricted Obligations under the Loan Documents in excess of the Available Amount shall be retransferred to it as soon as possible and, if not already done so, be paid up to the Available Amount (less, if required, any Swiss withholding tax) to the Collateral Agent.
(e) Payments by Swiss Guarantor may be reduced due to the obligation to deduct the Swiss withholding tax on dividends (currently at the rate of 35% subject to applicable double taxation treaties), to the extent that the payment is regarded as a distribution of dividends to its shareholders or any other related party. The Swiss withholding tax on dividends must be deducted from the gross payment unless a notification procedure applies.
(f) If required under applicable law (including double tax treaties) in force at the time it is required to perform Restricted Obligations under the Loan Documents, a Swiss Guarantor and any parent company of such Swiss Guarantor shall:
(i) use their best efforts to ensure that any payments under the Loan Documents can be made without deduction of Swiss withholding tax on dividends or with deduction of Swiss withholding tax on dividends 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) if and to the extent required by applicable law in force at the relevant time (including double taxation treaties), a Swiss Guarantor shall:
(A) deduct the Swiss withholding tax on dividends at the rate of 35% (or such other rate as is in force at that time) from any payment under the Loan Documents;
(B) pay the Swiss withholding tax on dividends to the tax authorities referred to in Article 34 of the Swiss Federal Law on Withholding Tax (Bundesgesetz über die Verrechnungssteuer vom 13. Oktober 1965) (the “Swiss Federal Tax Administration”); and
(C) notify and provide evidence to the Collateral Agent that the Swiss withholding tax on dividends has been paid to the Swiss Federal Tax Administration.
(g) A Swiss Guarantor and any parent company of such Swiss Guarantor shall use their best efforts to ensure that any person which is, as a result of a deduction of Swiss withholding tax on dividends, entitled to a full or partial refund of the Swiss withholding tax on dividends, will, as soon as possible after the deduction of the Swiss withholding tax on dividends, (1) request a refund of the Swiss withholding tax on dividends under any applicable law (including double tax treaties) and (2) pay to the Collateral Agent upon receipt any amount so refunded. If a refund is made to a Collateral Agent, it shall transfer the refund so received, after the deduction of costs, to the Swiss Guarantor, subject to any right of set-off of such Collateral Agent pursuant to the Agreement.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Graftech International LTD)
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) a. If and to the extent that a Guarantor incorporated in Switzerland (ia "Swiss Guarantor") a Swiss Obligor becomes liable under the Finance Documents, including, without limitation, this Clause 21 (Guarantee and Indemnity), Documents 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 Subsidiaries and (ii) 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 then applicable Swiss corporate law then applicable (the “"Restricted Obligations”"), the aggregate liability of the Swiss Obligor Guarantor 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 and, to the extent permitted by then applicable law, current net profits) available for distribution as dividends to the shareholders of the Swiss Obligor at Guarantor (the time the Swiss Obligor is required to perform under the Finance Documents"Maximum Amount"), provided that this is a requirement under then applicable mandatory Swiss law at that time and further provided understood that such limitation shall not discharge free the Swiss Obligor Guarantor from its obligations in excess thereofof the Maximum Amount, but that it shall merely postpone the performance date thereof of those obligations until such time or times as performance is again permitted notwithstanding such limitationpermitted.
b. Immediately after having been requested to perform the Restricted Obligations under the Finance Documents, the Swiss Guarantor shall (bi) perform any obligations which are not affected by the above limitations, and (ii) in respect of any balance, if and to the extent requested by the Facility Agent or required under then applicable Swiss law, provide the Facility Agent with an interim balance sheet audited by the statutory auditors of the Swiss Guarantor setting out the Maximum Amount, take any further corporate and other action as may be required by the Facility Agent (such as board and shareholders' approvals and the receipt of any confirmations from the Swiss Guarantor's statutory auditors) and other measures required to allow the Swiss Guarantor to make the payments agreed hereunder with a minimum of limitations and, immediately thereafter, pay up to the Maximum Amount to the Facility Agent.
c. In respect relation to payments made hereunder in satisfaction of Restricted Obligations, each the Swiss Obligor Guarantor shall:
(i) i. if and to the extent required by applicable law and subject to any applicable double tax treaties 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 applicabletime:
(A) subject to any applicable double taxation treaty, deduct Swiss Anticipatory Withholding Tax at the rate of 35 per cent. (or such other rate as is in force at that time) from any payment made by it in respect of the Restricted Obligationssuch payment;
(B) pay any such deduction to the Swiss Federal Tax Administration; and
(C) notify (and provide evidence to the Company shall ensure Facility Agent that the Swiss Obligor will notify) the Agent that such a deduction has been made and provide the Agent with evidence that such a deduction Withholding Tax has been paid to the Swiss Federal Tax Administration; and;
ii. as soon as possible after a deduction for Swiss Withholding Tax is made as required by applicable law:
(iiA) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Clause 16.2 (Tax gross-up) or indemnify the Finance Parties in accordance Clause 16.3 (Tax indemnity) 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. The Swiss Obligor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Anticipatory Tax, is entitled to a full or partial refund of the Swiss Anticipatory Withholding Tax, will as soon as possible after the deduction of the Swiss Anticipatory Tax, is in a position to be so refunded; and
(iB) request a in case it has received any refund of the Swiss Anticipatory Tax under any applicable law (including double tax treaties) and (ii) Withholding Tax, pay such refund to the Agent promptly upon receipt any amount so refunded for application as a further payment of the Swiss Obligor under and pursuant to this Agreementthereof.
(c) To d. For the extent avoidance of doubt, where a deduction for Swiss Obligor Withholding Tax is required to deduct Swiss Anticipatory Tax pursuant to paragraph (bc) above, the obligations of the Obligors under Clause 6.5 (Minimum interest), Clause 10.2 (Taxes), Clause 19.9 (Grossing-up) and if the maximum amount Clause 10.3 (Tax indemnity) of freely disposable shareholder equity pursuant to paragraph (a) above is not utilised, additional security interest granted by such Swiss Obligor under this Agreement shall be enforced until the enforcement proceeds equate an amount which (after making any deduction of Swiss Anticipatory Tax) would have resulted if no deduction of Swiss Anticipatory Tax had been requiredremain applicable, provided that such enforcement amount (including the increased amount) shall in any event be limited to the maximum amount of freely disposable shareholder equity pursuant to paragraph (a) above.
(d) In the case of Restricted Obligations, the Swiss Obligor shall, and any parent company of the Swiss Obligor being a party to this Agreement shall procure that the Swiss Obligor will, promptly implement all such measures and/or to promptly procure the fulfilment of all prerequisites to allow it to perform its obligations under this Clause 21 (Guarantee and Indemnity) with a minimum of limitations and to allow the Agent (and the Finance Parties) prompt use of the proceeds from security, including the following:
(i) preparation of an up-to-date audited balance sheet of the Swiss Obligor;
(ii) confirmation of the auditors of the Swiss Obligor that the relevant amount represents (the maximum of) freely distributable profits and reserves
(iii) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (save to the extent permitted by mandatory Swiss law);and for as long as that would cause the Maximum Amount to be exceeded.
(iv) revaluation e. If the enforcement of hidden reserves (Restricted Obligations would be limited due to the extent permitted by mandatory effects referred to in this Clause 11.10.6, then the Swiss law);
Guarantor shall (vi) to the extent permitted by applicable law and Swiss accounting standardslaw, write-up or revalue and/or realize any of its assets that are shown in on its balance sheet with a book value that is significantly lower than the market value of the such assets, in case of realization, however, only if such assets are not necessary for such Swiss Obligor’s business and (nicht betriebsnotwendig);
(viii) approval by a shareholders’ meeting of reduce its share capital to the Swiss Obligor of the (resulting) profit distribution; and
(vii) all such other measures necessary or useful to allow the Swiss Obligor to make the payments agreed hereunder with a minimum of limitationsallowed under then applicable law.
Appears in 1 contract
Sources: Multicurrency Revolving Credit Facility Agreement (Pra Group Inc)