Common use of Swiss Guarantors Clause in Contracts

Swiss Guarantors. The liability of each Guarantor who is organized under the laws of Switzerland (each, a “Swiss Guarantor”) shall be limited as follows notwithstanding any provision in this Indenture to the contrary: (a) The obligations, liabilities, indemnities and undertakings of as well as the application of net proceeds resulting from the realization of any security granted by a Swiss Guarantor under its Guarantee in relation to obligations, liabilities, indemnities or undertakings of the Company or another Guarantor (other than the relevant Swiss Guarantor or any of its Subsidiaries) (“Up- and Cross-stream Obligations”) shall be limited to its Free Reserves Available for Distribution (all in accordance with Art. 675 paragraph 2 and Art. 671 paragraph 1 and 2 no. 3 of the Swiss Code of Obligations) at the time of (1) the enforcement of such obligations, liabilities, indemnities, guaranties or undertakings or (2) such application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor, always provided that any such Up- and Cross-stream Obligations would otherwise lead to an actual violation of the prohibition to repay any capital contributions (Verbot der Einlagenrückgewähr) or to a prohibited distribution of profits pursuant to the Swiss Code of Obligations (verbotene Gewinnausschüttung). (b) For the purpose of the preceding subsection (a), “Free Reserves Available for Distribution” means the maximum amount of the Swiss Guarantor's profits and reserves available for distribution at the time of the enforcement of (1) such obligations, liabilities, indemnities or undertakings or (2) the application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor presently being equal to the positive difference between:

Swiss Guarantors. The liability of each of Guarantor who is organized under the laws of Switzerland (each, a “Swiss Guarantor”) under this Guaranty Agreement and the other Loan Documents in respect of the obligations of another Loan Party shall be limited as follows notwithstanding any provision in this Indenture Guaranty Agreement or any other Loan Document to the contrary: (aA) The obligations, liabilities, indemnities and undertakings of as well as the application of net proceeds resulting from the realization of any security granted by a Swiss Guarantor under its Guarantee the Loan Documents including the guaranty pursuant to this Guaranty Agreement in relation to obligations, liabilities, indemnities or undertakings of the Company or another Guarantor Loan Party (other than the relevant Swiss Guarantor or any of its Subsidiaries) (“Up- and Cross-stream Obligations”) shall be limited to its Free Reserves Available for Distribution (all in accordance with Art. 675 paragraph 2 and Art. 671 paragraph 1 and 2 no. 3 of the Swiss Code of Obligations) at the time of (1i) the enforcement of such obligations, liabilities, indemnities, guaranties or undertakings or (2ii) such application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor, always provided that any such Up- and Cross-stream Obligations would otherwise lead to an actual violation of the prohibition to repay any capital contributions (Verbot der Einlagenrückgewähr) or to a prohibited distribution of profits pursuant to the Swiss Code of Obligations (verbotene Gewinnausschüttung).. GUARANTY AGREEMENT (Foreign), Page 1 (bB) For the purpose of the preceding subsection paragraph (aA), “Free Reserves Available for Distribution” means the maximum amount of the Swiss Guarantor's ’s profits and reserves available for distribution at the time of the enforcement of (1i) such obligations, liabilities, indemnities or undertakings or (2ii) the application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor presently being equal to the positive difference between:

Swiss Guarantors. The liability of each of Guarantor who is organized under the laws of Switzerland (each, a “Swiss Guarantor”) under this Guaranty Agreement and the other Loan Documents in respect of the obligations of another Loan Party shall be limited as follows notwithstanding any provision in this Indenture Guaranty Agreement or any other Loan Document to the contrary: (aA) The obligations, liabilities, indemnities and undertakings of as well as the application of net proceeds resulting from the realization of any security granted by a Swiss Guarantor under its Guarantee the Loan Documents including the guaranty pursuant to this Guaranty Agreement in relation to obligations, liabilities, indemnities or undertakings of the Company or another Guarantor Loan Party (other than the relevant Swiss Guarantor or any of its Subsidiaries) (“Up- and Cross-stream Obligations”) shall be limited to its Free Reserves Available for Distribution (all in accordance with Art. 675 paragraph 2 and Art. 671 paragraph 1 and 2 no. 3 of the Swiss Code of Obligations) at the time of (1i) the enforcement of such obligations, liabilities, indemnities, guaranties or undertakings or (2ii) such application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor, always provided that any such Up- and Cross-stream Obligations would otherwise lead to an actual violation of the prohibition to repay any capital contributions (Verbot der Einlagenrückgewähr) or to a prohibited distribution of profits pursuant to the Swiss Code of Obligations (verbotene Gewinnausschüttung). (bB) For the purpose of the preceding subsection paragraph (aA), “Free Reserves Available for Distribution” means the maximum amount of the Swiss Guarantor's profits and reserves available for distribution at the time of the enforcement of (1i) such obligations, liabilities, indemnities or undertakings or (2ii) the application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor presently being equal to the positive difference between:

Swiss Guarantors. The liability of each Guarantor who is organized under the laws of Switzerland (each, a “Swiss Guarantor”) shall be limited as follows notwithstanding any provision in this Indenture to the contrary: (a) The obligations, liabilities, indemnities and undertakings of as well as the application of net proceeds resulting from the realization of any security granted by a Swiss Guarantor under its Guarantee in relation to obligations, liabilities, indemnities or undertakings of the Company Issuer or another Guarantor (other than the relevant Swiss Guarantor or any of its Subsidiaries) (“Up- and Cross-stream Obligations”) shall be limited to its Free Reserves Available for Distribution (all in accordance with Art. 675 paragraph 2 and Art. 671 paragraph 1 and 2 no. 3 of the Swiss Code of Obligations) at the time of (1) the enforcement of such obligations, liabilities, indemnities, guaranties or undertakings or (2) such application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor, always provided that any such Up- and Cross-stream Obligations would otherwise lead to an actual violation of the prohibition to repay any capital contributions (Verbot der Einlagenrückgewähr) or to a prohibited distribution of profits pursuant to the Swiss Code of Obligations (verbotene Gewinnausschüttung). (b) For the purpose of the preceding subsection (a), “Free Reserves Available for Distribution” means the maximum amount of the Swiss Guarantor's profits and reserves available for distribution at the time of the enforcement of (1) such obligations, liabilities, indemnities or undertakings or (2) the application of the net proceeds resulting from the foreclosure in or realization on the security granted by any Swiss Guarantor presently being equal to the positive difference between: