Nautilus 2007 Annual Report Download - page 172

14.16.7 Each party hereto confirms that, in accordance with this Section 14.16 a claim of Agent against an Obligor in respect of its
Parallel Debt does not constitute common property ( een gemeenschap ) within the meaning of Section 3:166 of the Dutch Civil Code and
that the provisions relating to such common property shall not apply. If, however, it shall be held that such claim of Agent does constitute
such common property and such provisions do apply, the parties hereto agree that this Agreement shall constitute the administration
agreement ( beheersregeling ) within the meaning of Section 3:168 of the Dutch Civil Code.
14.17 Limitations - Swiss Borrower . If and to the extent that obligations of any Swiss Obligor under the Loan Documents are for the
benefit of its Affiliates (other than its Subsidiaries) and that complying with such obligations would constitute a repayment of capital
(Einlagerückgewähr) or the payment of a (constructive) dividend (Gewinnausschüttung), the following shall apply:
(a) The aggregate obligations of the Swiss Obligor under the Loan Documents shall be limited to the maximum amount (the “
Available Amount ”) of the Swiss Obligor’s profits and reserves available for distribution, in each case in accordance with, without
limitation, articles 671(1) to (3) and 675(2) of the Swiss Code of Obligations at the time these obligations become due; the Available
Amount shall include the equity capital surplus (including any unrestricted portion of legal general 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. The Swiss Obligor shall at the request of the Agent take all measures
legally permissible required to ensure that the Available Amount is as high as possible under Swiss law, including by converting restricted
reserves into distributable reserves.
(b) In the event that the Swiss Obligor is required to make a payment or otherwise dispose of its assets under the Loan Documents
and such payment or disposal is subject to the limitations set out in Section 14.17(a) above, the Swiss Obligor shall immediately:
(i) procure that, within five Business Days, its auditors (A) prepare an interim audited balance sheet, (B) determine the
Available Amount based on such interim audited balance sheet and (C) confirm that the Available Amount complies with the
provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves; and, immediately thereafter,
(ii) pay to the Agent, or dispose of (or allow a disposal of) assets equal to, the Available Amount (less, if required, the Swiss
Withholding Tax as described in Section 14.17(c) below) in accordance with the Loan Documents.
(c) If so required under applicable law (including double tax treaties) at the time it is required to make a payment or dispose of its
assets under the Loan Documents, the Swiss Obligor:
(i) may deduct the Swiss Withholding Tax at the rate of 35 per cent (or such other rate as is in force at that time) from any
payment or disposal under the Loan Documents; and
(ii) may pay the Swiss Withholding Tax to the Swiss Federal Tax Administration; and
(iii) shall notify and provide evidence to the Agent that the Swiss Withholding Tax has been paid to the Swiss Federal Tax
Administration.
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