Common use of Waiver of Set Off Clause in Contracts

Waiver of Set Off. By its acquisition of the Notes, each holder of the Notes (including each beneficial owner) will be deemed to have waived any right of set-off, compensation or retention, or in respect of such other netting arrangement in respect of any amount with respect to the Notes or the applicable Indenture that they might otherwise have against the Company or the Guarantor, whether before or during their respective Restructuring Proceedings or winding up of the Company or the Guarantor. The Company may, without consent of the Holders or the Trustee (which consent the Holders and beneficial owners of the Notes shall be deemed to have given by their acquisition of the Notes), substitute the Guarantor for itself for all purposes under the Notes and the Indenture at any time, provided that at such time interest on the Notes may be paid without the deduction by the Guarantor of withholding tax (such substitution, a “Voluntary Issuer Substitution”). Upon any such Voluntary Issuer Substitution, the Company shall be released from its obligations under the Notes and Indenture, and the Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes and the Indenture with the same effect as if the Guarantor had been named as issuer in the Indenture and herein. In the event of such a Voluntary Issuer Substitution, the Guarantee shall cease to exist. In connection with any such Voluntary Issuer Substitution, the Indenture shall be amended in order to give effect to and evidence such substitution and the Guarantor shall furnish the Trustee with an officers’ certificate and an opinion of counsel to the effect that all conditions precedent to such substitution provided for in the Indenture have been complied with. The Company agrees to take any and all necessary action to effectuate any Voluntary Issuer Substitution with DTC or any other appropriate clearing system. Whether or not interest on the Notes may be paid without the deduction by the Guarantor of Swiss withholding tax, and provided that a Voluntary Issuer Substitution has not previously occurred, the Company will, without the consent of the Holders or the Trustee (which consent the Holders and beneficial owners of the Notes shall be deemed to have given by their acquisition of the Notes), automatically and by operation of the terms of the Indenture, substitute the Guarantor for itself for all purposes under the Notes and the Indenture upon the occurrence of a Restructuring Event, (such substitution, a “Restructuring Issuer Substitution”, and, together with Voluntary Issuer Substitution, “Issuer Substitution.”). The Guarantor consents in all respects to any Restructuring Issuer Substitution. Upon any Restructuring Issuer Substitution, the Company shall be released from its obligations under the Notes and the Indenture, and the Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes and the Indenture with the same effect as if the Guarantor had been named as issuer under the Indenture and herein. In the event of such Restructuring Issuer Substitution, the Guarantee shall cease to exist. The Company agrees to take any and all necessary action to effectuate any Restructuring Issuer Substitution with DTC or any other appropriate clearing system. The Company or the Guarantor shall provide written notice as soon as practicable to Holders through DTC or other applicable clearing system upon the occurrence of (i) a Restructuring Event, (ii) a Voluntary Issuer Substitution, (iii) a Restructuring Issuer Substitution, (iv) the exercise of any Swiss Resolution Power that affects, or may affect, the Notes, (v) the ordering of any Protective Measures that affects, or may affect, the Notes, (vi) the conclusion of any Suspension Period and (vii) a Completion Event. The Company shall also provide written notice of any such event directly to the Trustee as soon as practicable for information purposes, which notice must be accompanied by an Officer’s Certificate of the Company stating which of the foregoing events has occurred. The Trustee shall not be deemed to have knowledge of any of the foregoing events or be required to reflect any of the foregoing events in its books and records relating to the Notes until and unless a Responsible Officer of the Trustee receives notice of the same from the Company as aforesaid. Any such notice to DTC and the Trustee hereunder shall set forth the effect, or potential effect, of any of the foregoing on the Notes to the extent known. The Trustee shall not be liable or responsible on account of any action it takes or omits to take based on the failure, for whatever reason, of a Responsible Officer of the Trustee to receive notice hereunder.

Waiver of Set Off. By its acquisition If an Event of Default has occurred and is continuing, the NotesAdministrative Agent, each holder Lender and each of the Notes (including each beneficial owner) will be deemed its Affiliates is hereby authorized at any time and from time to have waived any right of set-offtime, compensation or retention, or in respect of such other netting arrangement in respect of any amount with respect to the Notes or the applicable Indenture that they might otherwise have against the Company or the Guarantorfullest extent permitted by Applicable Law, whether before or during their respective Restructuring Proceedings or winding up of the Company or the Guarantor. The Company may, without consent of the Holders or the Trustee (which consent the Holders to set off and beneficial owners of the Notes shall be deemed to have given by their acquisition of the Notes), substitute the Guarantor for itself for all purposes under the Notes and the Indenture at any time, provided that at such time interest on the Notes may be paid without the deduction by the Guarantor of withholding tax (such substitution, a “Voluntary Issuer Substitution”). Upon any such Voluntary Issuer Substitution, the Company shall be released from its obligations under the Notes and Indenture, and the Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes and the Indenture with the same effect as if the Guarantor had been named as issuer in the Indenture and herein. In the event of such a Voluntary Issuer Substitution, the Guarantee shall cease to exist. In connection with any such Voluntary Issuer Substitution, the Indenture shall be amended in order to give effect to and evidence such substitution and the Guarantor shall furnish the Trustee with an officers’ certificate and an opinion of counsel to the effect that all conditions precedent to such substitution provided for in the Indenture have been complied with. The Company agrees to take apply any and all necessary action deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by the Administrative Agent, such Lender or any such Affiliate, to effectuate or for the credit or the account of the Co‐Borrowers against any Voluntary Issuer Substitution with DTC and all of the Obligations, irrespective of whether or not such the Administrative Agent or Lender or Affiliate shall have made any demand under this Agreement or any other appropriate clearing system. Whether or not interest on the Notes Transaction Document and although such Obligations may be contingent or unmatured or are owed to a branch office or Affiliate of the Administrative Agent or such Lender different from the branch office or Affiliate holding such deposit or obligated on such Indebtedness. Each Lender shall notify the Administrative Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application and provided, further, that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid without over immediately to the deduction Administrative Agent for further application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the Guarantor benefit of Swiss withholding taxthe Administrative Agent and the Lenders, and provided that a Voluntary Issuer Substitution has not previously occurred, (y) the Company will, without the consent of the Holders or the Trustee (which consent the Holders and beneficial owners of the Notes shall be deemed to have given by their acquisition of the Notes), automatically and by operation of the terms of the Indenture, substitute the Guarantor for itself for all purposes under the Notes and the Indenture upon the occurrence of a Restructuring Event, (such substitution, a “Restructuring Issuer Substitution”, and, together with Voluntary Issuer Substitution, “Issuer Substitution.”). The Guarantor consents in all respects to any Restructuring Issuer Substitution. Upon any Restructuring Issuer Substitution, the Company shall be released from its obligations under the Notes and the Indenture, and the Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes and the Indenture with the same effect as if the Guarantor had been named as issuer under the Indenture and herein. In the event of such Restructuring Issuer Substitution, the Guarantee shall cease to exist. The Company agrees to take any and all necessary action to effectuate any Restructuring Issuer Substitution with DTC or any other appropriate clearing system. The Company or the Guarantor Defaulting Lender shall provide written notice as soon as practicable to Holders through DTC or other applicable clearing system upon the occurrence of (i) a Restructuring Event, (ii) a Voluntary Issuer Substitution, (iii) a Restructuring Issuer Substitution, (iv) the exercise of any Swiss Resolution Power that affects, or may affect, the Notes, (v) the ordering of any Protective Measures that affects, or may affect, the Notes, (vi) the conclusion of any Suspension Period and (vii) a Completion Event. The Company shall also provide written notice of any such event directly promptly to the Trustee Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as soon as practicable for information purposes, to which notice must be accompanied by an Officer’s Certificate it exercised such right of the Company stating which of the foregoing events has occurred. The Trustee shall not be deemed to have knowledge of any of the foregoing events or be required to reflect any of the foregoing events in its books and records relating to the Notes until and unless a Responsible Officer of the Trustee receives notice of the same from the Company as aforesaid. Any such notice to DTC and the Trustee hereunder shall set forth the effect, or potential effect, of any of the foregoing on the Notes to the extent known. The Trustee shall not be liable or responsible on account of any action it takes or omits to take based on the failure, for whatever reason, of a Responsible Officer of the Trustee to receive notice hereundersetoff.