Common use of Swiss Guarantee Limitation Clause in Contracts

Swiss Guarantee Limitation. Any guarantee, indemnity or other obligation provided under this Agreement or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment is requested or the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law (including any case law) at the point in time payment is requested. Such limitation (as may apply from time to time or not) shall not free such Swiss Guarantor from payment obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. (b) For the purpose of this Section 10.25, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee(a) If and to the extent that obligations of any Guarantor incorporated under the laws of Switzerland (for the purpose of this Section 12.09, indemnity or other obligation provided each a “Swiss Guarantor”) under this Agreement Indenture are for the benefit of its direct or any indirect affiliates (other Loan Document by than its direct or indirect wholly-owned subsidiaries) and that complying with such obligations would constitute a Swiss Guarantor shall be deemed not to be provided 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 Guarantor to the extent that the same or would constitute a breach of the financial assistance prohibitions otherwise be restricted under Swiss law. Under Swiss law, the following restrictions shall be corporate law then applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”), the following provisions shall apply: (b) The aggregate liability of a Swiss Guarantor for Restricted Obligations under this Indenture, including, without limitation, under the Guarantee, shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment is requested or extent and in the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply of its profits and reserves available for distribution to the extent it is a requirement under Applicable Law (including any case law) its shareholders at the point in time payment such Swiss Guarantor’s obligations fall due (the “Available Amount”), provided that this is requested. Such a requirement under applicable law at that time and further provided that such limitation (as may apply from time to time or not) shall not free (generally or definitively) release such Swiss Guarantor from payment obligations under this Agreement or any other Loan Documents performing Restricted Obligations hereunder in excess thereof, but merely postpone the payment performance date therefor until such times as payment performance is again permitted notwithstanding such limitation). (c) Immediately after having been requested to perform Restricted Obligations under this Indenture, 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 Trustee or required under then applicable Swiss law, provide the Trustee, within 30 Business Days, with (a) an interim balance sheet audited by its statutory auditors, (b) For the purpose determination by the statutory auditors of this Section 10.25, “Free Reserves the Available for Distribution” means an amount equal to Amount based on such interim audited balance sheet and (c) a confirmation from the maximum amount in which the relevant statutory auditors of such Swiss Guarantor can make that the Available Amount complies with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves; (ii) take such further corporate and other action which may be necessary at the time (such as board and shareholders’ approvals and the receipt of any confirmations from its statutory auditors) in order to allow a dividend prompt payment to its shareholder(sunder this Indenture or any other Notes documentation with a minimum of limitations; and/or (iii) (being immediately after confirming the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case Available Amount in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: sub-paragraph (i) above, procure that any amounts received or collected by the aggregate share capitalTrustee under and in connection with Restricted Obligations under this Indenture or any other Notes documentation 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 Trustee. (d) If so required under applicable law (including double tax treaties) in force at the time it is required to perform Restricted Obligations under this Indenture, a Swiss Guarantor shall: (i) use its best efforts to ensure that any payments under this Indenture or any other Notes documentation 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) the statutory reserves (including reserves for own shares if and revaluations), to the extent required by applicable law in force at the relevant time (including double taxation treaties): (A) deduct the Swiss Withholding Tax at the rate of 35% (or such reserves canother rate as is in force at that time) from any payment under this Indenture or any other Notes documentation; (B) pay the Swiss Withholding Tax 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, SR 642.21) (the “Swiss Federal Tax Administration”); and (C) notify and provide evidence to the Trustee that the Swiss Withholding Tax has been paid to the Swiss Federal Tax Administration. (e) Unless grossing-up is explicitly permitted under the laws of Switzerland then in force, a Swiss Guarantor shall not be transferred into unrestrictedrequired to make a gross-up, distributable reservesindemnify or otherwise hold harmless the holders of Notes for the deduction of the Swiss Withholding Tax, notwithstanding anything to the contrary contained in this Indenture, provided that this should not in any way limit any obligations of the Issuers or the other guarantors under this Indenture or any other Notes documentation to indemnify the holders of Notes in respect of the deduction of the Swiss Withholding Tax, including, without limitation, any tax indemnity undertaking under this Indenture. (f) A Swiss Guarantor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Withholding Tax, entitled to a full or partial refund of the Swiss Withholding Tax, will, as soon as possible after the deduction of the Swiss Withholding Tax, (i) request a refund of the Swiss Withholding Tax under any applicable law (including double tax treaties) and (iiiii) pay to the Trustee upon receipt any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholderamount so refunded.

Swiss Guarantee Limitation. Any guarantee(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this Section 10.6. (b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, indemnity or other obligation provided under this Agreement the Notes or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss lawagreement, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor in particular under this Agreement or any Loan Documents Article X, in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned or and controlled subsidiaries (the “Restricted Obligations”) and the aggregate use of the proceeds from the enforcement of any security interest granted by a Swiss Note Guarantor shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested or the maximum amount permitted by Swiss law applicable at requested, provided, that such time. Such limitations shall only apply to the extent it limitation is a requirement under Applicable Law applicable law (including any case law) at the that point in time payment is requested. Such and that such limitation (as may apply from time to time or not) shall not free such the Swiss Note Guarantor from payment its obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment performance date therefor or the application of proceeds from the realization of a security interest until such times time as payment performance is again permitted notwithstanding such limitation. (bc) For the purpose of this Section 10.25clause, “Free Reserves Available for Distribution” means an amount equal to the maximum maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case case, in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, represents the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Note Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder. As soon as reasonably practicable after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, promptly thereafter, pay the amount corresponding to the Free Reserves Available for Distribution to the Trustee (save to the extent provided below).

Swiss Guarantee Limitation. (a) Any guarantee, indemnity or other obligation provided under this Agreement or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each Swiss Guarantor: (ab) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment is requested or the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law (including any case law) at the point in time payment is requested. Such limitation (as may apply from time to time or not) shall not free such Swiss Guarantor from payment obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. (bc) For the purpose of this Section 10.25, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee, indemnity or other obligation provided under under, or the realization of any security interest over any asset granted by, this Agreement or any other Loan Document Document, by a Guarantor organized or incorporated under the laws of Switzerland (the “Swiss Guarantor Guarantor”) shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each the Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any other Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) and the aggregate use of proceeds from the enforcement of any security interest granted by a Swiss Guarantor shall be limited to the amount of that Swiss Guarantor’s 's Free Reserves Available for Distribution at the time payment or the application of proceeds from the realization of a security interest is requested or or, the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law applicable law (including any case law) at the point in time payment or the application of proceeds from the realization of a security interest is requested. Such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Guarantor from payment obligations or the application of proceeds from the realization of a security interest under this Agreement or any other Loan Documents Document in excess thereof, but merely postpone the payment date therefor or the application of proceeds from the realization of a security interest until such times as payment is again permitted notwithstanding such limitation. (b) . For the purpose of this Section 10.257.09, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity reserves available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this Section 10.6. (b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, indemnity or other obligation provided under this Agreement the Notes or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss lawagreement, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor in particular under this Agreement or any Loan Documents Article X, in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned or and controlled subsidiaries (the “Restricted Obligations”) shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested or the maximum amount permitted by Swiss law applicable at requested, provided, that such time. Such limitations shall only apply to the extent it limitation is a requirement under Applicable Law applicable law (including any case law) at the that point in time payment is requested. Such and that such limitation (as may apply from time to time or not) shall not free such the Swiss Note Guarantor from payment its obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment performance date therefor until such times time as payment performance is again permitted notwithstanding such limitation. (bc) For the purpose of this Section 10.25clause, “Free Reserves Available for Distribution” means an amount equal to the maximum maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case case, in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, represents the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Note Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee(a) If and to the extent that a Person formed or incorporated under the laws of Switzerland becomes a Guarantor hereunder (a “Swiss Guarantor”) (including, indemnity or other obligation but not limited, under the guarantee provided under for in this Agreement Article 11) or any other Loan Credit Document by for obligations of its Affiliates other than its Subsidiaries and if complying with such obligations would constitute a Swiss Guarantor shall be deemed not to be provided 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 Guarantor to the extent that the same or would constitute a breach of the financial assistance prohibitions otherwise be restricted under then applicable Swiss law. Under Swiss law, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries law (the “Swiss Restricted Obligations”) ), the aggregate liability of the Swiss Guarantor for Swiss Restricted Obligations shall be limited at such time to the amount of that Swiss Guarantor’s Free Reserves Available unrestricted equity capital available for Distribution at the time payment is requested or the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply distribution as dividends to the extent it is a requirement under Applicable Law (including any case law) at shareholders or quotaholders, respectively, of the point in time payment is requested. Such limitation (as may apply from time to time or not) shall not free such Swiss Guarantor from payment obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. (b) For the purpose of this Section 10.25, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (presently being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: of (i) the aggregate share capital, capital and (ii) the statutory reserves (including reserves for own shares and revaluationsrevaluations as well as agio), to the extent such reserves cannot be transferred into unrestricted, distributable reservesreserves and taking into account (by way of deducting) any upstream or cross-stream loans not granted on arm’s length terms (the “Swiss Available Amount”). The Swiss Available Amount shall be determined on the basis of an audited interim balance sheet of the Swiss Guarantor provided that (1) this limitation shall only apply to the extent it is a requirement under applicable Swiss law at the time the Swiss Guarantor is required to perform under the Swiss Restricted Obligations, and (iii2) such limitation shall not free the Swiss Guarantor from its obligations in excess of the Swiss Available Amount, but merely postpone the performance date therefor until such times as performance is again permitted. (b) In relation to payments made under the Swiss Restricted Obligations, the Swiss Guarantor shall: (i) 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; (ii) if such notification procedure pursuant to subparagraph (i) above does not apply: (A) deduct Swiss Withholding Tax at the rate of 35 per cent (or such other rate as is in force at that time) from any freely disposable equity such payment or if the notification procedure pursuant to subparagraph (i) above applies for a part of the 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; (B) pay any such deduction to the Swiss Federal Tax Administration; (C) notify and provide evidence to the Administrative Agent that the Swiss Withholding Tax has been paid to the Swiss Federal Tax Administration; and (D) (1) use its best efforts to ensure that any person other than the Administrative Agent, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Swiss Restricted Obligations, will, as soon as possible after such deduction, request a refund of Swiss Withholding Tax under applicable law (including treaties) and pay to the Administrative Agent upon receipt any amounts so refunded; or (2) if the Administrative Agent is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment, and if requested by the Administrative Agent, provide the Administrative Agent those documents that are required by law and applicable treaties to be blocked provided by the payer of such tax, for the Administrative Agent, to prepare a claim for refund of Swiss Withholding Tax. (c) Where a deduction for Swiss Withholding Tax is required to be made in respect of any loans payment under this clause pursuant to paragraph (b) above, the Administrative Agent shall be entitled to further enforce the guarantee and other indemnity granted by the Swiss Guarantor under this Agreement and apply proceeds therefrom against the Swiss Restricted Obligations (and the Swiss Guarantor shall withhold Swiss Withholding Tax on the additional amount in accordance with paragraph (b) above) so that after making any required deduction of Swiss 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 Withholding Tax had been required, subject always to the limitations set out in paragraph (a) above. This paragraph (c) is without prejudice to the indemnification obligations of any Credit Party other than the Swiss Guarantor in respect of any amounts deducted for the account of Swiss Withholding Tax. (d) If and to the extent requested by the Administrative Agent, the Swiss Guarantor shall, promptly implement all such measures and/or promptly procure the fulfilment of all prerequisites allowing it to promptly make the requested payment(s) from time to time, including the following: (i) preparation of an up-to-date audited interim balance sheet of the Swiss Guarantor to the extent required by Swiss corporate law, on the basis of which the Swiss Available Amount will be determined; (ii) confirmation of the auditors of the Swiss Guarantor that the relevant amount represents (the maximum of) the Swiss Available Amount; (iii) approval by a direct shareholders’ or indirect shareholder quotaholders’ meeting of the Swiss Guarantor of the distribution of the relevant requested amount (within the limits of the Swiss Available Amount); (iv) if the enforcement of obligations of the Swiss Guarantor were limited due to the effects referred to in this clause and to the extent permitted by applicable Swiss law, write up and/or, to the extent permitted under the Credit Documents, realize any of its assets that are shown in its balance sheet with a book value that is lower than the market value of the assets (in case of realization, however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendige Aktiven), and/or convert share capital and statutory reserves into freely available reserves unless prohibited by mandatory law; and (v) all such measures necessary or useful, and permitted under applicable Swiss law, to allow the Swiss Guarantor to make prompt payments or perform promptly Swiss Restricted Obligations with a direct or indirect subsidiary minimum of such shareholderlimitations.

Swiss Guarantee Limitation. Any guarantee, indemnity or other obligation provided under under, or the realization of any security interest over any asset granted by, this Agreement or any other Loan Document Document, by a Guarantor organized or incorporated under the laws of Switzerland (the “Swiss Guarantor Guarantor”) shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each the Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any other Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) and the aggregate use of proceeds from the enforcement of any security interest granted by a Swiss Guarantor shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment or the application of proceeds from the realization of a security interest is requested or or, the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law applicable law (including any case law) at the point in time payment or the application of proceeds from the realization of a security interest is requested. Such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Guarantor from payment obligations or the application of proceeds from the realization of a security interest under this Agreement or any other Loan Documents Document in excess thereof, but merely postpone the payment date therefor or the application of proceeds from the realization of a security interest until such times as payment is again permitted notwithstanding such limitation. (b) . For the purpose of this Section 10.257.09, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity reserves available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this Section 10.6. (b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, indemnity or other obligation provided under this Agreement the Notes or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss lawagreement, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor in particular under this Agreement or any Loan Documents Article X, in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned or and controlled subsidiaries (the “Restricted Obligations”) and the aggregate use of the proceeds from the enforcement of any security interest granted by a Swiss Note Guarantor shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested or the maximum amount permitted by Swiss law applicable at requested, provided, that such time. Such limitations shall only apply to the extent it limitation is a requirement under Applicable Law applicable law (including any case law) at the that point in time payment is requested. Such and that such limitation (as may apply from time to time or not) shall not free such the Swiss Note Guarantor from payment its obligations under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment performance date therefor or the application of proceeds from the realization of a security interest until such times time as payment performance is again permitted notwithstanding such limitation. (bc) For the purpose purposes of this Section 10.25clause, “Free Reserves Available for Distribution” means an amount equal to the maximum maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case case, in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, represents the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Note Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder. As soon as reasonably practicable after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, promptly thereafter, pay the lesser of (i) that Restricted Obligation and (ii) the amount corresponding to the Free Reserves Available for Distribution or the maximum amount permitted by Swiss law applicable at the time discharge is requested to the Trustee (save to the extent provided below).

Swiss Guarantee Limitation. Any guarantee, indemnity or other obligation provided under or the realization of any security over any asset granted by this Agreement or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) and the aggregate use of proceeds from the enforcement of any security interest granted by a Swiss Guarantor shall be limited to the amount of that Swiss Guarantor’s 's Free Reserves Available for Distribution at the time payment or the application of proceeds from the realization of a security interest is requested or the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law applicable law (including any case law) at the point in time payment or the application of proceeds from the realization of a security interest is requested. Such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Guarantor from payment obligations or the application of proceeds from the realization of a security interest under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment date therefor or the application of proceeds from the realization of a security interest until such times as payment is again permitted notwithstanding such limitation. (b) . For the purpose of this Section 10.259.21, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity reserves available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee, indemnity or other obligation provided under or the realization of any security over any asset granted by this Agreement or any other Loan Document by a Swiss Guarantor shall be deemed not to be provided by such Swiss Guarantor to the extent that the same would constitute a breach of the financial assistance prohibitions under Swiss law. Under Swiss law, the following restrictions shall be applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”) and the aggregate use of proceeds from the enforcement of any security interest granted by a Swiss Guarantor shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment or the application of proceeds from the realization of a security interest is requested or the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply to the extent it is a requirement under Applicable Law applicable law (including any case law) at the point in time payment or the application of proceeds from the realization of a security interest is requested. Such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Guarantor from payment obligations or the application of proceeds from the realization of a security interest under this Agreement or any other Loan Documents in excess thereof, but merely postpone the payment date therefor or the application of proceeds from the realization of a security interest until such times as payment is again permitted notwithstanding such limitation. (b) . For the purpose of this Section 10.259.21, “Free Reserves Available for Distribution” means an amount equal to the maximum amount in which the relevant Swiss Guarantor can make a dividend payment to its shareholder(s) (being the year to date balance sheet profit and any freely disposable equity reserves available for this purpose, in each case in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: (i) the aggregate share capital, (ii) the statutory reserves (including reserves for own shares and revaluations), to the extent such reserves cannot be transferred into unrestricted, distributable reserves, and (iii) any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholder.

Swiss Guarantee Limitation. Any guarantee(a) If and to the extent that obligations of any Guarantor incorporated under the laws of Switzerland (for the purpose of this Section 12.09, indemnity or other obligation provided each a “Swiss Guarantor”) under this Agreement Indenture are for the benefit of its direct or any indirect affiliates (other Loan Document by than its direct or indirect wholly-owned subsidiaries) and that complying with such obligations would constitute a Swiss Guarantor shall be deemed not to be provided 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 Guarantor to the extent that the same or would constitute a breach of the financial assistance prohibitions otherwise be restricted under Swiss law. Under Swiss law, the following restrictions shall be corporate law then applicable to each Swiss Guarantor: (a) Any guarantee, indemnity or other obligation and liability by a Swiss Guarantor under this Agreement or any Loan Documents in relation to the obligations, undertakings, indemnities or liabilities of a Guarantor other than that Swiss Guarantor or any of its fully owned or controlled subsidiaries (the “Restricted Obligations”), the following provisions shall apply: (b) The aggregate liability of a Swiss Guarantor for Restricted Obligations under this Indenture, including, without limitation, under the Guarantee, shall be limited to the amount of that Swiss Guarantor’s Free Reserves Available for Distribution at the time payment is requested or extent and in the maximum amount permitted by Swiss law applicable at such time. Such limitations shall only apply of its profits and reserves available for distribution to the extent it is a requirement under Applicable Law (including any case law) its shareholders at the point in time payment such Swiss Guarantor’s obligations fall due (presently being the amount equal to the positive difference between (i) the assets of a Swiss Guarantor and (ii) the aggregate of such Swiss Guarantor’s (A) liabilities, (B) registered share capital and (C) statutory reserves to the extent such reserves must be maintained by mandatory law, including reserves from own shares and revaluations as well as agio), in each case in accordance with applicable law (currently Article 675 paragraph two and Articles 671 to 671b (inclusive) of the Swiss Code of Obligations) (the “Available Amount”), provided that this is requested. Such a requirement under applicable law at that time and further provided that such limitation (as may apply from time to time or not) shall not free (generally or definitively) release such Swiss Guarantor from payment obligations under this Agreement or any other Loan Documents performing Restricted Obligations hereunder in excess thereof, but merely postpone the payment performance date therefor until such times as payment performance is again permitted notwithstanding such limitation). (c) Immediately after having been requested to perform Restricted Obligations under this Indenture, 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 Trustee or required under then applicable Swiss law, provide the Trustee, within 30 Business Days, with (a) an interim balance sheet audited by its statutory auditors, (b) For the purpose determination by the statutory auditors of this Section 10.25, “Free Reserves the Available for Distribution” means an amount equal to Amount based on such interim audited balance sheet and (c) a confirmation from the maximum amount in which the relevant statutory auditors of such Swiss Guarantor can make that the Available Amount complies with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves; (ii) take such further corporate and other action which may be necessary at the time (such as board and shareholders’ approvals and the receipt of any confirmations from its statutory auditors) in order to allow a dividend prompt payment to its shareholder(sunder this Indenture or any other Notes documentation with a minimum of limitations; and/or (iii) (being immediately after confirming the year to date balance sheet profit and any freely disposable equity available for this purpose, in each case Available Amount in accordance with applicable Swiss law). The freely disposable equity represents, inter alia, but not by way of limitation, the total shareholder equity less the total of: sub-paragraph (i) above, procure that any amounts received or collected by the aggregate share capitalTrustee under and in connection with Restricted Obligations under this Indenture or any other Notes documentation 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 Trustee. (d) If so required under applicable law (including double tax treaties) in force at the time it is required to perform Restricted Obligations under this Indenture, a Swiss Guarantor shall: (i) use its best efforts to ensure that any payments under this Indenture or any other Notes documentation 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) the statutory reserves (including reserves for own shares if and revaluations), to the extent required by applicable law in force at the relevant time (including double taxation treaties): (A) deduct the Swiss Withholding Tax at the rate of 35% (or such reserves canother rate as is in force at that time) from any payment under this Indenture or any other Notes documentation; (B) pay the Swiss Withholding Tax 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, SR 642.21) (the “Swiss Federal Tax Administration”); and (C) notify and provide evidence to the Trustee that the Swiss Withholding Tax has been paid to the Swiss Federal Tax Administration. (e) Unless grossing-up is explicitly permitted under the laws of Switzerland then in force, a Swiss Guarantor shall not be transferred into unrestrictedrequired to make a gross-up, distributable reservesindemnify or otherwise hold harmless the holders of Notes for the deduction of the Swiss Withholding Tax, notwithstanding anything to the contrary contained in this Indenture, provided that this should not in any way limit any obligations of the Issuers or the other guarantors under this Indenture or any other Notes documentation to indemnify the holders of Notes in respect of the deduction of the Swiss Withholding Tax, including, without limitation, any tax indemnity undertaking under this Indenture. (f) A Swiss Guarantor shall use its best efforts to ensure that any person which is, as a result of a deduction of Swiss Withholding Tax, entitled to a full or partial refund of the Swiss Withholding Tax, will, as soon as possible after the deduction of the Swiss Withholding Tax, (i) request a refund of the Swiss Withholding Tax under any applicable law (including double tax treaties) and (iiiii) pay to the Trustee upon receipt any freely disposable equity that has to be blocked for any loans granted by the Swiss Guarantor to a direct or indirect shareholder or a direct or indirect subsidiary of such shareholderamount so refunded.