Common use of Switzerland Clause in Contracts

Switzerland. (ii) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party (other than the wholly owned direct or indirect Subsidiaries of such Swiss Guarantor) shall not exceed the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available. (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iii) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. (iii) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party (other than the wholly owned direct or indirect Subsidiaries of such Swiss Guarantor) shall not exceed the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available.. 100 (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iii) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. (iii) (i) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party (other than the wholly owned direct or indirect Subsidiaries of such Swiss Guarantor) shall not exceed the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (iii) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available. (iiiii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other ​ ​ obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iiiiv) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. Notwithstanding anything to the contrary in this Indenture, the obligations of a Swiss Guarantor and the rights of the Trustee, Collateral Agent and each Holder under this Indenture or any other Note Document are subject to the following limitations: (ii1) The aggregate liability of any If and to the extent (i) a guarantee or security granted, indemnity or other obligation assumed by a Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and Indenture or any and all other Loan Documents for, Note Document guarantees or with respect to, secures obligations of any other Loan Party of its (other than the wholly owned direct or indirect Subsidiaries indirect) Parent Companies (upstream security) or sister companies (cross-stream security) (the “Upstream or Cross-Stream Secured Obligations”) and (ii) using the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to discharge the Upstream or Cross-Stream Secured Obligations would be unlawful under Swiss Guarantormandatory law (inter alia, by constituting a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung)) at such time, the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to be used to discharge the Upstream or Cross-Stream Secured Obligations shall not exceed be limited to the maximum amount of such Swiss Guarantor’s freely disposable equity at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable Swiss mandatory law at that time; provided, further, that such limitation shall not free such Swiss Guarantor from its obligations, or prevent the Trustee or Collateral Agent from applying such enforcement proceeds, in accordance with 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 Swiss mandatory law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount This Maximum Amount of freely disposable 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 statutory auditors of the relevant such Swiss Guarantor on the basis of an interim audited annual or interim balance sheet as of such Swiss Guarantorthat time. (2) In respect of Upstream or Cross-Stream Secured Obligations, to be provided to the Administrative Agent by the each Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation shall, as concerns the proceeds resulting from the enforcement of the statutory auditors of any guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor that the determined amount of freely disposable equity complies with under this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity​ Indenture or any other Note Document, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent Swiss Withholding Tax is required by applicable law in force at the relevant time to be paid in relation thereto: (A) procure that such freely disposable equity is available.payment or enforcement proceeds can be used to discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss Withholding Tax by discharging the liability to pay such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax; (B) if the notification procedure pursuant to subclause (A) above: (i) applies for a part of the Swiss Withholding Tax only, such Swiss Guarantor undertakes to deduct (and, with respect to enforcement proceeds of security, the Collateral Agent, acting at the direction of the requisite Holders, undertakes to deduct) from any payment or enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations an amount of Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law; or (ii) Each does not apply, deduct (and, with respect to enforcement proceeds of security, the Collateral Agent, acting at the direction of the requisite Holders, undertakes to deduct) an amount equivalent to the Swiss Withholding Tax at such rate (currently 35% at the date of this Indenture) as is in force from time to time from any such payment or enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations that may be due by such Swiss Guarantor to the Swiss Federal Tax Administration from such payment or enforcement, and, in the case of each of the foregoing clauses (i) and (ii), subject to any applicable double taxation treaty or any other applicable treaty, pay (and, with respect to enforcement proceeds of security, the Collateral Agent, acting at the direction of the requisite Holders, undertakes to pay), without delay, any such taxes deducted to the Swiss Federal Tax Administration in the name and for the account of the Swiss Guarantor; (C) notify the Trustee or Collateral Agent, as applicable, that such notification or, as the case may be, deduction has been made, and provide the Trustee or Collateral Agent, as applicable, 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 (D) in the case of a deduction of Swiss Withholding Tax, (i) 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 payment or enforcement proceeds, will, as soon as possible after such deduction (A) request a refund of Swiss Withholding Tax under applicable law (including tax treaties); and (B) pay to the Trustee or Collateral Agent, as applicable, upon receipt any amount so refunded; and (ii) if the Trustee, the Collateral Agent or any Holder is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment or enforcement proceeds, and if requested by the Trustee, the Collateral Agent or any such Holder, shall provide to the Trustee, the Collateral Agent or any such Holder those documents that are required by law and applicable tax treaties to be provided by the payer of such tax to prepare a claim for refund of Swiss Withholding Tax. (3) If a Swiss Guarantor or the Collateral Agent is obliged to deduct Swiss Withholding Tax in accordance with clause (2) above, the Trustee, the Collateral Agent and each Holder shall be entitled to further enforce the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor under this Indenture or any other Note Document and/or further apply proceeds therefrom against Upstream or Cross-Stream Secured Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements/applications of proceeds shall always be limited to the Maximum Amount as set out in clause (1) above. (4) If and to the extent (i) reasonably requested by the Trustee or Collateral Agent, as applicable, or (ii) required under Swiss mandatory law applicable at the relevant time, in order to allow the Trustee and Collateral Agent, as applicable, and each Holder to obtain a maximum benefit under the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor, such Swiss Guarantor shall, and any holding company Parent Company of a such Swiss Guarantor which is being a party to this Indenture or any Loan other Note Document shall procure that each such Swiss Guarantor will, promptly take and promptly cause to be taken all and any action, including, without limitation, including the following: (A) the passing of any shareholders’ resolutions to approve any the payment or other performance under this Agreement or any other Loan Documents and (B) use of the obtaining of any confirmations enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the respective Swiss Guarantor is required to make a payment enforcement of the Upstream or perform other obligations under this Agreement or any other Loan Document, Cross-Stream Secured Obligations in order to allow a prompt payment use of amounts owing by the enforcement proceeds; (B) preparation of an up-to-date audited balance sheet of such Swiss Guarantor; (C) confirmation of the auditors of that Swiss Guarantor under that the Loan Documents as well as relevant amount represents the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations.Maximum Amount; (iiiD) If conversion of restricted reserves into profits and reserves freely available for the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due distribution as dividends (to the effects referred extent permitted by mandatory Swiss law); (E) revaluation of hidden reserves (to in this Section 7.09(nthe extent permitted by mandatory Swiss law), the Swiss Guarantor affected shall further, ; (F) to the extent permitted by applicable law and Swiss accounting standards and write standards, write-up or sell 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 sale; realization, however, only if such assets are not necessary for the respective Swiss Guarantor’s business (nicht betriebsnotwendig); and (G) all such other measures necessary or useful to allow the Trustee, Collateral Agent, and each Holder to use enforcement proceeds as agreed hereunder with a minimum of limitations.

Switzerland. (iii) The aggregate liability of any If and to the extent that: (1) a Guarantor incorporated in Switzerland and/or having its registered office in Switzerland (a “Swiss Guarantor Guarantor”) becomes liable under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents Guaranty for, or with respect to, obligations Obligations of any other Loan Party (other than the a Loan Party that is a wholly owned direct or indirect Subsidiaries subsidiaries of such the Swiss Guarantor) shall not exceed (the amount of “Restricted Obligations”); and (2) fulfilling such Swiss Guarantor’s freely disposable equity in accordance with liability or obligation would, under Swiss law, presently being constitute a repayment of capital (Einlagerückgewähr), a violation of the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory legally protected reserves (including reserves for own shares and revaluations as well as capital surplus gesetzlich geschützte Reserven) or the payment of a (agio)constructive) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent dividend (Gewinnausschüttung) by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to or would otherwise be restricted under then applicable mandatory Swiss law, the Swiss Guarantor's liability under this Section 7.09(n) Guaranty for, or with respect to, the Restricted Obligations (together with a confirmation of and the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies any payment in relation thereto) shall be limited to the amount as determined in accordance with this Section 7.09(n) and applicable Swiss law as then in effect (the provisions of “Swiss corporate law which are aimed at protecting the share capital and legal reservesAvailable Amount”). (i) . The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the Swiss Available Amount (as may apply from time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation time) shall not definitively free the Swiss Guarantor from its obligations the Restricted Obligations in excess of the freely disposable equitySwiss Available Amount, but merely postpone the performance payment date thereof therefor until such times when the as payment is again permitted under applicable Swiss law. Any and all indemnities and guarantees of such Swiss Guarantor has again freely disposable equity if and to contained in any other Loan Documents shall be construed in a manner consistent with the extent such freely disposable equity is availableprovisions herein contained. (ii) Each In case the Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor who is required to make a payment or perform other obligations in respect of Restricted Obligations under this Agreement Guaranty is obliged to withhold Swiss Withholding Tax in respect of such payment, the Swiss Guarantor shall: (1) use its best efforts 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 for such Tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the Tax; (2) if the notification procedure pursuant to sub-paragraph (i) above does not apply, deduct Swiss Withholding Tax at the rate of 35% (or such other rate as in force from time to time), or if the notification procedure pursuant to sub-paragraph (i) above applies for a part of the Swiss Withholding Tax only, deduct Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such Tax by notification under applicable law, from any payment made by it in respect of Restricted Obligations and promptly pay any such Taxes to the Swiss Federal Tax Administration; (3) notify the DIP Agent that such a notification, or as the case may be, such a deduction has been made and provide the DIP Agent with evidence that such notification of the Swiss Federal Tax Administration has been made or, as the case may be, any such deductions have been paid to the Swiss Federal Tax Administration; (4) in the case of a deduction of Swiss Withholding Tax, use its best efforts to ensure that any person other Loan Documentthan the DIP Agent, which is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment in respect of Restricted Obligations, will, as soon as possible after such deduction: a. be in a position to apply for a refund of the Swiss Withholding Tax under applicable law (including Tax treaties) and pay to the DIP Agent upon receipt any amounts so refunded; or b. if the DIP Agent or a Secured Party is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment and if requested by the DIP Agent, provide the DIP Agent or Secured Party those documents that are required by law and applicable tax treaties to be provided by the payer of such Tax in order to allow enable the DIP Agent or Secured Party to prepare a prompt payment claim for refund of amounts owing by Swiss Withholding Tax. The DIP Agent and the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of shall co-operate with each other obligations under the Loan Documents with a minimum of limitationsto secure such refund. (iii) If the enforcement Swiss Guarantor is obliged to withhold Swiss Withholding Tax in accordance with paragraph (ii) above, the DIP Agent shall be entitled to further request payment under the Guaranty and other indemnity granted to it under this Guaranty and apply proceeds therefrom against the Restricted Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further payments shall always be limited to the obligations of Swiss Available Amount. In case the proceeds irrevocably received by the DIP Agent and the Secured Parties pursuant to paragraph (ii)(4) above and this paragraph (iii) have the effect that the proceeds received by the DIP Agent and the Secured Parties exceed the Obligations, then the DIP Agent or the relevant Secured Party shall promptly return such overcompensation to the relevant Swiss Guarantor. (iv) If and to the extent requested by the DIP Agent and if and to the extent this is from time to time permitted under applicable Swiss mandatory law notwithstanding the restrictions referred to in Section 29(g)(i), in order to allow the DIP Agent (and the Secured Parties) to obtain a maximum benefit under this Guaranty and any and all indemnities and guarantees owed by a Swiss Guarantor under contained in any other Loan Documents, such Swiss Guarantor shall take all such measures and/or promptly procure the Loan Documents would be limited due fulfilment of all such prerequisites, in each case to the effects referred extent within its power, as are necessary and appropriate to in achieve, without delay, performance of its obligations under this Section 7.09(n)Guaranty and make the (required) payment(s) thereunder from time to time, including the following: (1) the preparation of an up-to-date (interim) audited balance sheet of the Swiss Guarantor; (2) the confirmation of the auditors of the Swiss Guarantor affected shall further, that the relevant amount represents (the maximum of) freely distributable reserves; (3) the passing of unanimous written resolutions of the quotaholders of the Swiss Guarantor approving the (resulting) distribution; (4) the conversion of restricted reserves into profits and reserves freely available for the distribution as dividends (to the extent permitted by mandatory Swiss law); (5) to the extent permitted by applicable law and Swiss accounting standards and law, (A) write up or sell 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 sale; a realization, however, only if such assets are not necessary for the Swiss Guarantor’s 's business (nicht betriebsnotwendig)) and/or (B) reduce its quota capital; and (6) all such other measures necessary or useful and/or to promptly procure the fulfilment of all prerequisites reasonably necessary to allow the Swiss Guarantor to promptly make the payments and perform the obligations agreed hereunder from time to time with a minimum of limitations.

Switzerland. (ii1) The aggregate liability of any If and to the extent a Guarantor incorporated in Switzerland (each a “Swiss Guarantor Guarantor”) becomes liable under this Agreement (in particular, without limitation, under this Article VII) and Indenture or any and all other Loan Documents for, or with respect to, Note Document for obligations of the Issuer, the Company or any other Loan Party Guarantor (other than the wholly owned direct or indirect Subsidiaries subsidiaries of such Swiss Guarantor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend ((verdeckte) Gewinnausschüttung) by such Swiss Guarantor, a (constructive) repayment of statutory capital reserves (Rückzahlung der gesetzlichen Kapitalreserve) or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Guarantor’s aggregate liability for Restricted Obligations shall not exceed the amount of such the relevant Swiss Guarantor’s freely disposable equity at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law, presently being law (the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves“Freely Disposable Amount”). (i2) The This limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the relevant Swiss Guarantor is required to perform Restricted Obligations under the Loan Documentsthis Indenture or any other Note Document. Such limitation shall not free the relevant Swiss Guarantor from its obligations in excess of the freely disposable equityFreely Disposable Amount, but merely postpone the performance date thereof until such times when the relevant Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is availableequity. (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iii3) If the enforcement of the obligations of a the relevant Swiss Guarantor under the Loan Documents this Indenture or any other Note Document would be limited due to the effects referred to in this Section 7.09(n11.02(j), the relevant Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Security Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; , however, only if such assets are not necessary for the relevant Swiss Guarantor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Note Documents. (4) If the enforcement of the obligations of the relevant Swiss Guarantor under this Indenture or any other Note Document would be limited due to the effects referred to in this Section 11.02(j), the relevant Swiss Guarantor and any holding company of the relevant Swiss Guarantor which is a party to a Note Document shall procure that the relevant Swiss Guarantor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Security Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or any other Note Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the relevant Swiss Guarantor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the relevant Swiss Guarantor that a payment of the relevant Swiss Guarantor under this Indenture or any other Note Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the relevant Swiss Guarantor is required to make a payment or perform other obligations under this Indenture or any other Note Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations. (5) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Indenture or any other Note Document, the relevant Swiss Guarantor:

Switzerland. (ii) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party Guarantor organized under the laws of Switzerland (other than herein, a "Swiss Guarantor") under the wholly owned direct Indenture and any Documents to which it is a party shall be limited to the maximum amount of profits available for distribution by such Swiss Guarantor as dividends at the time or indirect Subsidiaries times the obligations of such Swiss Guarantor) shall not exceed Guarantor fall due (being the amount of such Swiss Guarantor’s freely disposable equity balance sheet profits and any reserves available for this purpose, in each case in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves)Articles 804 et seq. The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis Code of Obligations), as evidenced by an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available. (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan DocumentGuarantor. EXHIBIT A [Form of Note] (Face of Note) UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. A NEW YORK CORPORATION (iii) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n"DTC"), the Swiss Guarantor affected shall furtherNEW YORK, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assetsNEW YORK TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, in case of sale; howeverEXCHANGE OR PAYMENT, only if such assets are not necessary for the Swiss Guarantor’s business AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (nicht betriebsnotwendigAND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED, IF IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND, IF IN PART, TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.] [THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAW AND, ACCORDINGLY, MAY NOT BE SOLD OR OTHERWISE TRANSFERRED UNDER THE CIRCUMSTANCES THAT WOULD RESULT IN A VIOLATION OF THE REGISTRATION REQUIREMENTS OF SAID ACT OR SUCH OTHER LAW.] Note CUSIP No.

Switzerland. (iii) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party (other than the wholly owned direct or indirect Subsidiaries of such Swiss Guarantor) shall not exceed the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available. (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be 137 required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iii) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. Notwithstanding anything to the contrary in this Indenture, the obligations of a Note Party incorporated and organized under the laws of Switzerland (iieach a “Swiss Guarantor”) The aggregate liability and the rights of the Trustee, Collateral Agent and each Holder under this Indenture or any other Note Document are subject to the following limitations: (1) If and to the extent (i) a guarantee or security granted, indemnity or other obligation assumed by a Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and Indenture or any and all other Loan Documents for, Note Document guarantees or with respect to, secures obligations of any other Loan Party of its (other than the wholly owned direct or indirect Subsidiaries indirect) Parent Companies (upstream ​ security) or sister companies (cross-stream security) (the “Upstream or Cross-Stream Secured Obligations”) and (ii) using the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to discharge the Upstream or Cross-Stream Secured Obligations would be unlawful under Swiss Guarantormandatory law (inter alia, by constituting a repayment of capital (Einlagerückgewähr/Kapitalrückzahlung), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend (Gewinnausschüttung)) at such time, the proceeds from the enforcement of such guarantee, security, indemnity or other obligation to be used to discharge the Upstream or Cross-Stream Secured Obligations shall not exceed be limited to the maximum amount of such Swiss Guarantor’s freely disposable equity at the time of enforcement (the “Maximum Amount”); provided that such limitation is required under the applicable Swiss mandatory law at that time; provided, further, that such limitation shall not free such Swiss Guarantor from its obligations, or prevent the Trustee or Collateral Agent from applying such enforcement proceeds, in accordance with 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 Swiss mandatory law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount This Maximum Amount of freely disposable 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 statutory auditors of the relevant such Swiss Guarantor on the basis of an interim audited annual or interim balance sheet as of such Swiss Guarantorthat time. (2) In respect of Upstream or Cross-Stream Secured Obligations, to be provided to the Administrative Agent by the each Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation shall, as concerns the proceeds resulting from the enforcement of the statutory auditors of any guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor that the determined amount of freely disposable equity complies with under this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equityIndenture or any other Note Document, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent Swiss Withholding Tax is required by applicable law in force at the relevant time to be paid in relation thereto: (a) procure that such freely disposable equity is available.payment or enforcement proceeds can be used to discharge Upstream or Cross-Stream Secured Obligations without deduction of Swiss Withholding Tax by discharging the liability to pay such tax by notification pursuant to applicable law (including double tax treaties) rather than payment of the tax; (b) if the notification procedure pursuant to sub-paragraph (i) above: (i) applies for a part of the Swiss Withholding Tax only, such Swiss Guarantor undertakes to deduct (and, with respect to enforcement proceeds of security, the Collateral Agent, acting at the direction of the requisite Holders, undertakes to deduct) from any payment or enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations an amount of Swiss Withholding Tax at the reduced rate resulting after the discharge of part of such tax by notification under applicable law; or (ii) Each does not apply, deduct (and, with respect to enforcement proceeds of security, the Collateral Agent, acting at the direction of the requisite Holders, undertakes to deduct) an amount equivalent to the Swiss Withholding Tax at such rate (currently 35% at the date of this Indenture) as is in force from time to time from any such payment or enforcement proceeds used to discharge Upstream or Cross-Stream Secured Obligations that may be due by such Swiss Guarantor to the Swiss Federal ​ ​ Tax Administration from such payment or enforcement, and, in the case of each of the foregoing clauses (i) and (ii), subject to any applicable double taxation treaty or any other applicable treaty, pay (and, with respect to enforcement proceeds of security, the Collateral Agent, acting at the direction of the requisite Holders, undertakes to pay), without delay, any such taxes deducted to the Swiss Federal Tax Administration in the name and for the account of the Swiss Guarantor; (c) notify the Trustee or Collateral Agent, as applicable, that such notification or, as the case may be, deduction has been made, and provide the Trustee or Collateral Agent, as applicable, 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 (d) in the case of a deduction of Swiss Withholding Tax, (i) 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 payment or enforcement proceeds, will, as soon as possible after such deduction (A) request a refund of Swiss Withholding Tax under applicable law (including tax treaties); and (B) pay to the Trustee or Collateral Agent, as applicable, upon receipt any amount so refunded; and (ii) if the Trustee, the Collateral Agent or any Holder is entitled to a full or partial refund of the Swiss Withholding Tax deducted from such payment or enforcement proceeds, and if requested by the Trustee, the Collateral Agent or any such Holder, shall provide to the Trustee, the Collateral Agent or any such Holder those documents that are required by law and applicable tax treaties to be provided by the payer of such tax to prepare a claim for refund of Swiss Withholding Tax. (3) If a Swiss Guarantor or the Collateral Agent is obliged to deduct Swiss Withholding Tax in accordance with paragraph (2) above, the Trustee, the Collateral Agent and each Holder shall be entitled to further enforce the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor under this Indenture or any other Note Document and/or further apply proceeds therefrom against Upstream or Cross-Stream Secured Obligations up to an amount which is equal to that amount which would have been obtained if no withholding of Swiss Withholding Tax were required, whereby such further enforcements/applications of proceeds shall always be limited to the Maximum Amount as set out in paragraph (1) above. (4) If and to the extent (i) reasonably requested by the Trustee or Collateral Agent, as applicable, or (ii) required under Swiss mandatory law applicable at the relevant time, in order to allow the Trustee and Collateral Agent, as applicable, and each Holder to obtain a maximum benefit under the guarantee or security granted or indemnity or other obligation assumed by such Swiss Guarantor, such Swiss Guarantor shall, and any holding company Parent Company of a such Swiss Guarantor which is being a party to this Indenture or any Loan other Note Document shall procure that each such Swiss Guarantor will, promptly take and promptly cause to be taken all and any action, including, without limitation, including the following: ​ ​ (Aa) the passing of any shareholders’ ' resolutions to approve any the payment or other performance under this Agreement or any other Loan Documents and (B) use of the obtaining of any confirmations enforcement proceeds, which may be required as a matter of Swiss mandatory law in force at the time of the respective Swiss Guarantor is required to make a payment enforcement of the Upstream or perform other obligations under this Agreement or any other Loan Document, Cross-Stream Secured Obligations in order to allow a prompt payment use of amounts owing by the enforcement proceeds; (b) preparation of an up-to-date audited balance sheet of such Swiss Guarantor; (c) confirmation of the auditors of that Swiss Guarantor under that the Loan Documents as well as relevant amount represents the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations.Maximum Amount; (iiid) If conversion of restricted reserves into profits and reserves freely available for the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due distribution as dividends (to the effects referred extent permitted by mandatory Swiss law); (e) revaluation of hidden reserves (to in this Section 7.09(nthe extent permitted by mandatory Swiss law), the Swiss Guarantor affected shall further, ; (f) to the extent permitted by applicable law and Swiss accounting standards and write standards, write-up or sell 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 sale; realization, however, only if such assets are not necessary for the respective Swiss Guarantor’s business (nicht betriebsnotwendig); and (g) all such other measures necessary or useful to allow the Trustee, Collateral Agent, and each Holder to use enforcement proceeds as agreed hereunder with a minimum of limitations.

Switzerland. Notwithstanding any term or provision of Article 10 of the Indenture or the Notation of Guaranty (iiall the aforesaid together the “Agreements”), if and to the extent that any Guarantor incorporated or established under the laws of, or for tax purposes resident in, Switzerland or for tax purposes having a permanent establishment in Switzerland with which the Agreements are effectively connected (each, a “Swiss Guarantor,” and collectively, together with all German Guarantors, the “Restricted Guarantors”) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents is liable pursuant to the Agreements for, or with respect to, obligations of the Issuer, any other Loan Party Guarantors or any other affiliates (other than its own subsidiaries) (the wholly owned direct or indirect Subsidiaries of “Restricted Obligations”), such Swiss GuarantorGuarantor shall (to the extent that such is a requirement of the applicable law in force at the relevant time) shall not exceed only be liable for a sum equal to the maximum amount of such Swiss Guarantor’s freely disposable equity its profits available for distribution as dividend at any given time (being the balance sheet profits and any reserves made for this purpose, in each case in accordance with the applicable provisions of the Swiss lawCode of Obligations), presently being the total shareholder equity less the total of (A) the aggregate share capital which amount shall be, if and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined required by the statutory auditors of Swiss law and practice at the relevant Swiss Guarantor time, (a) determined on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent (b) approved by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor as distributable amount, and (c) approved as distribution by a duly convened meeting of the shareholders of such Swiss Guarantor, always provided that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such such limitation shall not free the relevant Swiss Guarantor from its payment obligations under the Agreements in excess of the freely disposable equityits distributable profits, but merely postpone the performance payment date thereof therefore until such times when as payment is permitted notwithstanding such limitation. To the extent required by applicable law and any applicable double taxation treaty in force at the relevant time, in respect of the Restricted Obligations, each Swiss Guarantor shall (A) (a) deduct Swiss withholding tax at the rate of 35.0% (or such other rate as is applicable) from any payment made by it in respect of the Restricted Obligations, (b) pay any such deduction to the Swiss Guarantor Federal Tax Administration, and (c) promptly notify (or procure that the Issuer notifies) the Trustee that such a deduction has again freely disposable equity if been made and provide the Trustee with evidence that such a deduction has been paid to the Swiss Federal Tax Administration; and (B) to the extent such freely disposable equity a deduction is available. made, not be obliged to gross-up or indemnify (or otherwise hold harmless) any Person in relation to any such deduction and payment made by it to the Swiss Federal Tax Administration if such gross-up or indemnification is illegal or the amount paid to the Swiss Federal Tax Administration plus the amount of the gross-up or indemnification exceeds the maximum amount of such Swiss Guarantor’s profits available for distribution as dividend as determined pursuant to the above sub-paragraph. Each Swiss Guarantor shall use its best efforts to ensure that any Holder or the Trustee which is, as a result of a payment under the Agreements, entitled to a full or partial refund of the Swiss withholding tax, shall 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 (ii) Each pay to such Holder or the Trustee, as applicable, upon receipt any amount so refunded. The Swiss Guarantor shallGuarantors will only be considered as discharged from their respective payment obligations under the Agreements to the extent of the effective payment received by such Holder or the Trustee, and any holding company as applicable. Subject only to the limitation of a Swiss Guarantor which is a party the amount to any Loan Document shall procure that be paid in respect of the Restricted Obligations, each Swiss Guarantor will, and the Issuer undertake to take and/or cause all measures necessary or useful to (a) make such payment valid and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance non-refundable under this Agreement or any other Loan Documents Swiss corporate law; and (Bb) implement the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform forgoing documents and other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitationsacts. (iii) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. (iii) (i) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party (other than the wholly owned direct or indirect Subsidiaries of such Swiss Guarantor) shall not exceed the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (iii) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available. (iiiii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations.. ​ ​ (iiiiv) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. (iii) The aggregate liability of any Swiss Guarantor under this Agreement (in particular, without limitation, under this Article VII) and any and all other Loan Documents for, or with respect to, obligations of any other Loan Party (other than the wholly owned direct or indirect Subsidiaries of such Swiss Guarantor) shall not exceed the amount of such Swiss Guarantor’s freely disposable equity in accordance with Swiss law, presently being the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves). (i) The limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the Swiss Guarantor is required to perform under the Loan Documents. Such limitation shall not free the Swiss Guarantor from its obligations in excess of the freely disposable equity, but merely postpone the performance date thereof until such times when the Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is available. (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iii) If the enforcement of the obligations of a Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Section 7.09(n), the Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; however, only if such assets are not necessary for the Swiss Guarantor’s business (nicht betriebsnotwendig).

Switzerland. (ii1) The aggregate liability of any If and to the extent a Guarantor incorporated in Switzerland (each a “Swiss Guarantor Guarantor”) becomes liable under this Agreement (in particular, without limitation, under this Article VII) and Indenture or any and all other Loan Documents for, or with respect to, Note Document for obligations of the Issuer, the Company or any other Loan Party Guarantor (other than the wholly owned direct or indirect Subsidiaries subsidiaries of such Swiss Guarantor) (the “Restricted Obligations”) and if complying with such obligations would constitute a repayment of capital (Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven) or the payment of a (constructive) dividend ((verdeckte) Gewinnausschüttung) by such Swiss Guarantor, a (constructive) repayment of statutory capital reserves (Rückzahlung der gesetzlichen Kapitalreserve) or would otherwise be restricted under Swiss law and practice then applicable, such Swiss Guarantor’s aggregate liability for Restricted Obligations shall not exceed the amount of such the relevant Swiss Guarantor’s freely disposable equity at the time it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law, presently being law (the total shareholder equity less the total of (A) the aggregate share capital and (B) statutory reserves (including reserves for own shares and revaluations as well as capital surplus (agio)) to the extent such reserves cannot be transferred into ​ unrestricted, distributable reserves). The amount of freely disposable equity shall be determined by the statutory auditors of the relevant Swiss Guarantor on the basis of an audited annual or interim balance sheet of such Swiss Guarantor, to be provided to the Administrative Agent by the Swiss Guarantor promptly after having been requested to perform obligations limited pursuant to this Section 7.09(n) (together with a confirmation of the statutory auditors of such Swiss Guarantor that the determined amount of freely disposable equity complies with this Section 7.09(n) and the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves“Freely Disposable Amount”). (i2) The This limitation in clause (i) above shall only apply to the extent it is a requirement under applicable law at the time the relevant Swiss Guarantor is required to perform Restricted Obligations under the Loan Documentsthis Indenture or any other Note Document. Such limitation shall not free the relevant Swiss Guarantor from its obligations in excess of the freely disposable equityFreely Disposable Amount, but merely postpone the performance date thereof until such times when the relevant Swiss Guarantor has again freely disposable equity if and to the extent such freely disposable equity is availableequity. (ii) Each Swiss Guarantor shall, and any holding company of a Swiss Guarantor which is a party to any Loan Document shall procure that each Swiss Guarantor will, take and cause to be taken all and any action, including, without limitation, (A) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents and (B) the obtaining of any confirmations which may be required as a matter of Swiss mandatory law in force at the time the respective Swiss Guarantor is required to make a payment or perform other obligations under this Agreement or any other Loan Document, in order to allow a prompt payment of amounts owing by the Swiss Guarantor under the Loan Documents as well as the performance by the Swiss Guarantor of other obligations under the Loan Documents with a minimum of limitations. (iii3) If the enforcement of the obligations of a the relevant Swiss Guarantor under the Loan Documents this Indenture or any other Note Document would be limited due to the effects referred to in this Section 7.09(n11.02(j), the relevant Swiss Guarantor affected shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Security Agent, (i) write up or sell any of its assets that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets, in case of sale; , however, only if such assets are not necessary for the relevant Swiss Guarantor’s business (nicht betriebsnotwendig) and (ii) reduce its share capital to the minimum allowed under then applicable law, provided that such steps are permitted under the Note Documents. (4) If the enforcement of the obligations of the relevant Swiss Guarantor under this Indenture or any other Note Document would be limited due to the effects referred to in this Section 11.02(j), the relevant Swiss Guarantor and any holding company of the relevant Swiss Guarantor which is a party to a Note Document shall procure that the relevant Swiss Guarantor will take and will cause to be taken all and any action as soon as reasonably practicable but in any event within 30 Business Days from the request of the Security Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Indenture or any other Note Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the relevant Swiss Guarantor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the relevant Swiss Guarantor that a payment of the relevant Swiss Guarantor under this Indenture or any other Note Documents in an amount corresponding to the Freely Disposable Amount is in compliance with the provisions of Swiss corporate law which are aimed at protecting the share capital and legal reserves, and (v) the obtaining of any other confirmations which may be required as a matter of Swiss mandatory law in force at the time the relevant Swiss Guarantor is required to make a payment or perform other obligations under this Indenture or any other Note Document, in order to allow a prompt payment in relation to Restricted Obligations with a minimum of limitations. (5) If so required under applicable law (including tax treaties) at the time it is required to make a payment under this Indenture or any other Note Document, the relevant Swiss Guarantor: (A) shall use its best efforts to ensure that such payments can be made without deduction of Swiss withholding tax, or with deduction of Swiss withholding tax at a reduced rate, by discharging the liability to such tax by notification pursuant to applicable law (including tax treaties) rather than payment of the tax; (B) shall deduct the Swiss withholding tax at such rate (being 35% on the Issue Date) as in force from time to time if the notification procedure pursuant to sub-paragraph (A) above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by notification if the notification procedure pursuant to sub-paragraph (A) applies for a part of the Swiss withholding tax only; and shall pay within the time allowed any such taxes deducted to the Swiss Federal Tax Administration; and (C) shall promptly notify the Security Agent that such notification or, as the case may be, deduction has been made, and provide the Security 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. (6) In the case of a deduction of Swiss withholding tax, the relevant Swiss Guarantor shall use its best efforts to ensure that any person that is entitled to a full or partial refund of the Swiss withholding tax deducted from such payment under this Indenture or any other Note Document, will, as soon as possible after such deduction: (A) request a refund of the Swiss withholding tax under applicable law (including tax treaties); and (B) pay to the Security Agent upon receipt any amount so refunded; and (7) To the extent the relevant Swiss Guarantor is required to deduct Swiss withholding tax pursuant to this Indenture or any other Note Document, and if the Freely Disposable Amount is not fully utilized, the relevant Swiss Guarantor will be required to pay an additional amount so that after making any required deduction of Swiss withholding tax the aggregate net amount paid to the Security Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount.