Common use of Swiss Limitation Clause in Contracts

Swiss Limitation. Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, the obligations of Myovant Switzerland or any other Loan Party incorporated in Switzerland (collectively, the “Swiss Guarantor”) and the rights of Agent and Lender under this Agreement and the other Loan Documents are subject to the following limitations: (a) If and to the extent a guarantee or security interest granted or any other obligations assumed by a Swiss Guarantor under this Agreement and the other Loan Documents guarantees or secures obligations of its (direct or indirect) parent company (upstream security) or its sister companies (cross-stream security) (the “Upstream or Cross-Stream Secured Obligations”) and if and to the extent using the proceeds from the enforcement of such guarantee, security interest or other obligation to discharge the Upstream or Cross-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) under Swiss corporate law or would otherwise be restricted under Swiss law and practice then applicable, the proceeds from the enforcement of such guarantee, security interest or other obligation to be used to discharge the Upstream or Cross-Stream Secured Obligations shall be limited to the maximum amount of that Swiss Guarantor’s freely disposable shareholder or quotaholder equity at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable law at that time and that such limitation shall not free the Swiss Guarantor from its obligations in excess of the Maximum Amount, but merely postpone the performance date of those obligations until such time or times as performance is again permitted under 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 Guarantor on the basis of an interim audited balance sheet as of that time. (b) In respect of Upstream or Cross-Stream Secured Obligations, the Swiss Guarantor shall, 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: (i) procure that such enforcement proceeds can be used to 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 law rather than payment of the tax; 76 (ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently thirty-five percent (35%) at the date of this Agreement) as is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; (iii) 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; and (iv) in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, 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. (c) The Swiss Guarantor shall promptly take and promptly cause to be taken any action, 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 up-to-date audited balance sheet of the Swiss Guarantor; (iii) confirmation of the auditors of the Swiss Guarantor that the relevant amount represents the Maximum Amount; (iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law); (v) to the extent permitted by applicable 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 the Swiss Guarantor’s business (nicht betriebsnotwendig); and (vi) all such other measures necessary to allow the Swiss Guarantor to use enforcement proceeds as agreed hereunder with a minimum of limitations. 77 SECTION 12

Swiss Limitation. Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, the obligations of Myovant Switzerland or any other Loan Party incorporated in Switzerland (collectively, the “Swiss Guarantor”) and the rights of Agent and Lender under this Agreement and the other Loan Documents are subject to the following limitations: (a) If and to the extent a guarantee or security interest granted Swiss Borrower becomes liable under this Agreement or any other Loan Document for obligations assumed by a Swiss Guarantor (including, for the avoidance of doubt, the obligations under this Agreement and the Section 11.04) of any other Loan Documents guarantees or secures obligations of its Party (other than the wholly owned direct or indirect) parent company (upstream security) or its sister companies (cross-stream security) (indirect subsidiaries of the “Upstream or Cross-Stream Secured Obligations”Swiss Borrower) and if and to the extent using the proceeds from the enforcement of complying with such guarantee, security interest or other obligation to discharge the Upstream or Cross-Stream Secured Obligations 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) under by such Swiss corporate law Borrower or would otherwise be restricted under Swiss law and practice then applicableapplicable (the “Swiss Restricted Obligations”), the proceeds from the enforcement of such guarantee, security interest or other obligation to be used to discharge the Upstream or Cross-Stream Secured Swiss Borrower's aggregate liability for Swiss Restricted Obligations shall be limited to not exceed the maximum amount of that the Swiss GuarantorBorrower’s freely disposable equity in accordance with Swiss law, presently being the total shareholder or quotaholder equity less the total of (1) the aggregate share capital and (2) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) (the “Swiss Freely Disposable Amount”). The limitation set forth above shall only apply to the extent it is a requirement under applicable law at the time of enforcement (the “Maximum Amount”); provided that such limitation Swiss Borrower is required to perform Swiss Restricted Obligations under the applicable law at that time and that such this Agreement or any other Loan Document. Such limitation shall not free the Swiss Guarantor Borrower from its obligations in excess of the Maximum Swiss Freely Disposable Amount, but merely postpone the performance date of those obligations thereof until such time or times as performance is when the Swiss Borrower has again permitted under 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 Guarantor on the basis of an interim audited balance sheet as of that timesuch freely disposable equity is available. (b) In respect of Upstream or Cross-Stream Secured Obligations, the Swiss Guarantor shall, 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: (i) procure that such enforcement proceeds can be used to 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 law rather than payment of the tax; 76 (ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently thirty-five percent (35%) at the date of this Agreement) as is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; (iii) 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; and (iv) in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, 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. (c) The Swiss Guarantor Borrower shall promptly take and promptly cause to be taken all and any action, including to the following: extent reasonably practical and possible, including, without limitation, (i) the passing of any shareholders’ or quotaholders’ resolutions, as may be the case, resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the use provision of an audited interim balance sheet, (iii) the provision of a confirmation from the auditors of the enforcement proceeds, which may be required as Swiss Borrower that a matter payment of the Swiss Borrower under this Agreement or the Loan Document in an amount corresponding to the Swiss Freely Disposable Amount is in compliance with the provisions of Swiss mandatory corporate law in force which are aimed at protecting the time of the enforcement of the security interest share capital and legal reserves, in order to allow a prompt use payment of the enforcement proceeds; (ii) preparation of up-to-date audited balance sheet of amounts owed by the Swiss Guarantor; (iii) confirmation of Borrower under this Agreement or the auditors of Loan Documents as well as the performance by the Swiss Guarantor that Borrower of other obligations under this Agreement or the relevant amount represents Loan Documents. If so required under applicable law (including tax treaties) at the Maximum Amount; (iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (time it is required to the extent permitted by mandatory Swiss law); (v) to the extent permitted by applicable lawmake a payment under this Agreement, 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 the Swiss Guarantor’s business (nicht betriebsnotwendig); and (vi) all such other measures necessary to allow the Swiss Guarantor to use enforcement proceeds as agreed hereunder with a minimum of limitations. 77 SECTION 12Borrower:

Swiss Limitation. Notwithstanding anything to the contrary in this Agreement and the other Loan Documents, the obligations of Myovant Switzerland or any other Loan Party incorporated in Switzerland (collectively, the “Swiss Guarantor”) and the rights of Agent and Lender under this Agreement and the other Loan Documents are subject to the following limitations: (a) If and to the extent a guarantee or security interest granted Swiss Borrower becomes liable under this Agreement or any other Loan Document for obligations assumed by a Swiss Guarantor (including, for the avoidance of doubt, the obligations under this Agreement and the Section 11.04) of any other Loan Documents guarantees or secures obligations of its Party (other than the wholly owned direct or indirect) parent company (upstream security) or its sister companies (cross-stream security) (indirect subsidiaries of the “Upstream or Cross-Stream Secured Obligations”Swiss Borrower) and if and to the extent using the proceeds from the enforcement of complying with such guarantee, security interest or other obligation to discharge the Upstream or Cross-Stream Secured Obligations 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) under by such Swiss corporate law Borrower or would otherwise be restricted under Swiss law and practice then applicableapplicable (the “Swiss Restricted Obligations”), the proceeds from the enforcement of such guarantee, security interest or other obligation to be used to discharge the Upstream or Cross-Stream Secured Swiss Borrower's aggregate liability for Swiss Restricted Obligations shall be limited to not exceed the maximum amount of that the Swiss GuarantorBorrower’s freely disposable equity in accordance with Swiss law, presently being the total shareholder or quotaholder equity less the total of (1) the aggregate share capital and (2) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) (the “Swiss Freely Disposable Amount”). The limitation set forth above shall only apply to the extent it is a requirement under applicable law at the time of enforcement (the “Maximum Amount”); provided that such limitation Swiss Borrower is required to perform Swiss Restricted Obligations under the applicable law at that time and that such this Agreement or any other Loan Document. Such limitation shall not free the Swiss Guarantor Borrower from its obligations in excess of the Maximum Swiss Freely Disposable Amount, but merely postpone the performance date of those obligations thereof until such time or times as performance is when the Swiss Borrower has again permitted under 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 Guarantor on the basis of an interim audited balance sheet as of that timesuch freely disposable equity is available. (b) In respect of Upstream or Cross-Stream Secured Obligations, the Swiss Guarantor shall, 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: (i) procure that such enforcement proceeds can be used to 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 law rather than payment of the tax; 76 (ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently thirty-five percent (35%) at the date of this Agreement) as is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; (iii) 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; and (iv) in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, 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. (c) The Swiss Guarantor Borrower shall promptly take and promptly cause to be taken all and any action, including to the following: extent reasonably practical and possible, including, without limitation, (i) the passing of any shareholders’ or quotaholders’ resolutions, as may be the case, resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the use provision of an audited interim balance sheet, (iii) the provision of a confirmation from the auditors of the enforcement proceeds, which may be required as Swiss Borrower that a matter payment of the Swiss Borrower under this Agreement or the Loan Document in an amount corresponding to the Swiss Freely Disposable Amount is in compliance with the provisions of Swiss mandatory corporate law in force which are aimed at protecting the time of the enforcement of the security interest share capital and legal reserves, in order to allow a prompt use payment of the enforcement proceeds; (ii) preparation of up-to-date audited balance sheet of amounts owed by the Swiss Guarantor; (iii) confirmation of Borrower under this Agreement or the auditors of Loan Documents as well as the performance by the Swiss Guarantor that Borrower of other obligations under this Agreement or the relevant amount represents Loan Documents. 122 If so required under applicable law (including tax treaties) at the Maximum Amount; (iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (time it is required to the extent permitted by mandatory Swiss law); (v) to the extent permitted by applicable lawmake a payment under this Agreement, 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 the Swiss Guarantor’s business (nicht betriebsnotwendig); and (vi) all such other measures necessary to allow the Swiss Guarantor to use enforcement proceeds as agreed hereunder with a minimum of limitations. 77 SECTION 12Borrower:

Swiss Limitation. Notwithstanding anything to the contrary in No Swiss Borrower shall be liable under this Agreement and the other Loan Documents, the obligations of Myovant Switzerland or any other Loan Party incorporated in Switzerland Document for obligations (collectivelyincluding, for the avoidance of doubt, the “Swiss Guarantor”) and the rights of Agent and Lender obligations under this Agreement and the Section 11.04) of any other Loan Documents are subject to Party which is a wholly or partially owned direct or indirect Subsidiary of the following limitations: (a) Swiss Borrower, unless the Subsidiary is a Swiss Borrower itself. NYDOCS02/1167307 111 If and to the extent a guarantee or security interest granted Swiss Borrower becomes liable under this Agreement or any other Loan Document for obligations assumed by a Swiss Guarantor (including, for the avoidance of doubt, the obligations under this Agreement and the Section 11.04) of any other Loan Documents guarantees or secures obligations of its Party (other than the wholly owned direct or indirect) parent company (upstream security) or its sister companies (cross-stream security) (indirect subsidiaries of the “Upstream or Cross-Stream Secured Obligations”Swiss Borrower) and if and to the extent using the proceeds from the enforcement of complying with such guarantee, security interest or other obligation to discharge the Upstream or Cross-Stream Secured Obligations 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) under by such Swiss corporate law Borrower or would otherwise be restricted under Swiss law and practice then applicableapplicable (the “Swiss Restricted Obligations”), the proceeds from the enforcement of such guarantee, security interest or other obligation to be used to discharge the Upstream or Cross-Stream Secured Swiss Borrower’s aggregate liability for Swiss Restricted Obligations shall be limited to not exceed the maximum amount of that the Swiss GuarantorBorrower’s freely disposable shareholder or quotaholder equity in accordance with Swiss law, as determined at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable law at that time and that such limitation shall not free the Swiss Guarantor from its obligations in excess of the Maximum Amount, but merely postpone the performance date of those obligations until such time or times as performance is again permitted under 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 such Swiss Guarantor Borrower on the basis of an interim audited balance sheet as of that timetime (the “Swiss Freely Disposable Amount”). (b) In respect of Upstream or Cross-Stream Secured Obligations, The limitation set forth above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor shall, as concerns the proceeds resulting from the enforcement of the guarantee or security interest granted or other obligations assumed Borrower is required to perform Swiss Restricted Obligations under this Agreement and the or any other Loan DocumentsDocument. Such limitation shall not free the Swiss Borrower from its obligations in excess of the Swiss Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Borrower has again freely disposable equity and if and to the extent required by applicable law in force at the relevant time: (i) procure that such enforcement proceeds can be used to 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 law rather than payment of the tax; 76 (ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently thirty-five percent (35%) at the date of this Agreement) as freely disposable equity is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; (iii) 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; and (iv) in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, 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 refundedavailable. (c) The Swiss Guarantor Borrower shall promptly take and promptly cause to be taken all and any action, including to the following: extent reasonably practical and possible, including, without limitation, (i) the passing of any shareholders’ or quotaholders’ resolutions, as may be the case, resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the use provision of an audited interim balance sheet, (iii) the provision of a confirmation from the auditors of the enforcement proceeds, which may be required as Swiss Borrower that a matter payment of the Swiss Borrower under this Agreement or the Loan Document in an amount corresponding to the Swiss Freely Disposable Amount is in compliance with the provisions of Swiss mandatory corporate law in force which are aimed at protecting the time of the enforcement of the security interest share capital and legal reserves, in order to allow a prompt use payment of the enforcement proceeds; (ii) preparation of up-to-date audited balance sheet of amounts owed by the Swiss Guarantor; (iii) confirmation of Borrower under this Agreement or the auditors of Loan Documents as well as the performance by the Swiss Guarantor that Borrower of other obligations under this Agreement or the relevant amount represents Loan Documents. If so required under applicable law (including tax treaties) at the Maximum Amount; (iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (time it is required to the extent permitted by mandatory Swiss law); (v) to the extent permitted by applicable lawmake a payment under this Agreement, 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 the Swiss Guarantor’s business (nicht betriebsnotwendig); and (vi) all such other measures necessary to allow the Swiss Guarantor to use enforcement proceeds as agreed hereunder with a minimum of limitations. 77 SECTION 12Borrower:

Swiss Limitation. Notwithstanding anything to the contrary in No Swiss Borrower shall be liable under this Agreement and the other Loan Documents, the obligations of Myovant Switzerland or any other Loan Party incorporated in Switzerland Document for obligations (collectivelyincluding, for the avoidance of doubt, the “Swiss Guarantor”) and the rights of Agent and Lender obligations under this Agreement and the Section 11.04) of any other Loan Documents are subject to Party which is a wholly or partially owned direct or indirect Subsidiary of the following limitations: (a) Swiss Borrower, unless the Subsidiary is a Swiss Borrower itself. If and to the extent a guarantee or security interest granted Swiss Borrower becomes liable under this Agreement or any other Loan Document for obligations assumed by a Swiss Guarantor (including, for the avoidance of doubt, the obligations under this Agreement and the Section 11.04) of any other Loan Documents guarantees or secures obligations of its Party (other than the wholly owned direct or indirect) parent company (upstream security) or its sister companies (cross-stream security) (indirect subsidiaries of the “Upstream or Cross-Stream Secured Obligations”Swiss Borrower) and if and to the extent using the proceeds from the enforcement of complying with such guarantee, security interest or other obligation to discharge the Upstream or Cross-Stream Secured Obligations obligations would constitute a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the NYDOCS02/1167307 109 payment of a (constructive) dividend (Gewinnausschüttung) under by such Swiss corporate law Borrower or would otherwise be restricted under Swiss law and practice then applicableapplicable (the “Swiss Restricted Obligations”), the proceeds from the enforcement of such guarantee, security interest or other obligation to be used to discharge the Upstream or Cross-Stream Secured Swiss Borrower’s aggregate liability for Swiss Restricted Obligations shall be limited to not exceed the maximum amount of that the Swiss GuarantorBorrower’s freely disposable shareholder or quotaholder equity in accordance with Swiss law, as determined at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable law at that time and that such limitation shall not free the Swiss Guarantor from its obligations in excess of the Maximum Amount, but merely postpone the performance date of those obligations until such time or times as performance is again permitted under 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 such Swiss Guarantor Borrower on the basis of an interim audited balance sheet as of that timetime (the “Swiss Freely Disposable Amount”). (b) In respect of Upstream or Cross-Stream Secured Obligations, The limitation set forth above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor shall, as concerns the proceeds resulting from the enforcement of the guarantee or security interest granted or other obligations assumed Borrower is required to perform Swiss Restricted Obligations under this Agreement and the or any other Loan DocumentsDocument. Such limitation shall not free the Swiss Borrower from its obligations in excess of the Swiss Freely Disposable Amount, but merely postpone the performance date thereof until such times when the Swiss Borrower has again freely disposable equity and if and to the extent required by applicable law in force at the relevant time: (i) procure that such enforcement proceeds can be used to 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 law rather than payment of the tax; 76 (ii) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct the Swiss Withholding Tax at such rate (currently thirty-five percent (35%) at the date of this Agreement) as freely disposable equity is in force from time to time from any such enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations, and pay, without delay, any such taxes deducted to the Swiss Federal Tax Administration; (iii) 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; and (iv) in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such enforcement proceeds, 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 refundedavailable. (c) The Swiss Guarantor Borrower shall promptly take and promptly cause to be taken all and any action, including to the following: extent reasonably practical and possible, including, without limitation, (i) the passing of any shareholders’ or quotaholders’ resolutions, as may be the case, resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the use provision of an audited interim balance sheet, (iii) the provision of a confirmation from the auditors of the enforcement proceeds, which may be required as Swiss Borrower that a matter payment of the Swiss Borrower under this Agreement or the Loan Document in an amount corresponding to the Swiss Freely Disposable Amount is in compliance with the provisions of Swiss mandatory corporate law in force which are aimed at protecting the time of the enforcement of the security interest share capital and legal reserves, in order to allow a prompt use payment of the enforcement proceeds; (ii) preparation of up-to-date audited balance sheet of amounts owed by the Swiss Guarantor; (iii) confirmation of Borrower under this Agreement or the auditors of Loan Documents as well as the performance by the Swiss Guarantor that Borrower of other obligations under this Agreement or the relevant amount represents Loan Documents. If so required under applicable law (including tax treaties) at the Maximum Amount; (iv) conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (time it is required to the extent permitted by mandatory Swiss law); (v) to the extent permitted by applicable lawmake a payment under this Agreement, 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 the Swiss Guarantor’s business (nicht betriebsnotwendig); and (vi) all such other measures necessary to allow the Swiss Guarantor to use enforcement proceeds as agreed hereunder with a minimum of limitations. 77 SECTION 12Borrower: