Joint and several liability

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whereby each of (i) and (ii) is required to take effect upon satisfaction of such Remaining Liability by the Subsidiary; in the event that such creditor only asks for partial satisfaction of a Remaining Liability, then such assignment and transfer shall be partial accordingly. For the avoidance of doubt, the Subsidiary shall have the right to refuse satisfaction of its Joint and Several Liability for such Remaining Liability as long as the creditor of such Remaining Liability refuses such assignment and such consent to transfer, respectively, or otherwise frustrates mala fide the transfer of the security to the Subsidiary (including through an undue early release or waiver of its security); however, such creditor shall not be required to do anything which is not under its control in order to effect such assignment or transfer.

For the avoidance of doubt, the Subsidiary enters into the Transaction (including this Agreement) and assumes the aforementioned contractual positions and assumes joint and several liability for the obligations of the Parent in connection with the Covered Bond Programme, in consideration of the aggregate benefits it will receive as a result of the Transaction, including, without limitation, in relation to the Covered Bond Programme, the ownership of (or beneficial interest in) the transferred Swiss Mortgage Claims and Mortgage

In particular, (i) the terms of this Agreement shall supersede those of the Asset Transfer Agreement and (ii) the Covered Bond Joint and Several Liability (and any joint and several obligations assumed pursuant to any other Programme Agreement) shall supersede the ATA Joint and Several Liability. The Covered Bond Joint and Several Liability shall in the context of this Agreement be entirely governed by the terms hereunder in relation to the rights and obligations of the Parties and (to the extent permissible) any third party beneficiaries hereunder.

WHEREAS, pursuant to Section 12.2 of the Asset Transfer Agreement, UBS Switzerland will assume full and unconditional joint and several liability for, among other things, the UBS Derivatives in existence at the Closing Time, and pursuant to Section 12.7 of the Asset Transfer Agreement, the Parties undertake to enter into certain separate instruments in furtherance of the intention of the Parties to ensure that the joint and several liability is given full effect under the laws of certain jurisdictions that may be relevant, including into this Agreement; and

For the avoidance of doubt, the assumption of the Parent’s joint and several liability pursuant to this Section 5.2 shall not be deemed an acknowledgement or acceptance of any claim under the Subsidiary Pre-Funding. Recourse and Indemnity Obligations by the Parent or the Subsidiary or be construed to cause the Parent’s liability to perform, or procure the performance of, such obligations to exceed the Subsidiary’s liability in respect of any such claim under the Subsidiary Pre-Funding, Recourse and Indemnity Obligations; therefore, the assumption by the Parent of its joint and several liability shall not defeat, impair or limit in any

(a) To the extent that Obligations for which UBS Switzerland is jointly and severally liable under the terms of this Agreement is secured in full or in part by any security or collateral of whatever nature provided by UBS at the time the relevant creditor seeks satisfaction of such Obligation from UBS Switzerland, UBS Switzerland shall have the right to require, as a condition precedent to satisfying its obligation under the joint and several liability and in such form as UBS Switzerland may reasonably require, such creditor

The Parties acknowledge, and any Third Party asserting a Party’s Joint and Several Liability is hereby cautioned, that the liability and indemnification arrangements under this Deed (including a Party’s Joint and Several Liability) are subject to the powers of FINMA (or any other Swiss authority that is competent under Swiss law) in case of financial distress, resolution or similar circumstances and in accordance with applicable Swiss law (including protective measures pursuant to art. 26 Banking Act and any measures that result in the partial or complete write-down of claims or conversion of claims into equity pursuant to art. 31 para. 3 Banking Act and art. 47 ff. Banking Insolvency Ordinance (section 3 “Corporate Actions”) at the relevant time). The rights and obligations under this Deed (including the Subsidiary’s Relevant Joint and Several Liability) shall be construed in accordance with, and are subject to, any such powers.

For the avoidance of doubt, the assumption of the Subsidiary’s joint and several liability pursuant to this Section 4.3 shall not be deemed an acknowledgement or acceptance of any claim under the Remaining Covered Bond Existing Liability by the Subsidiary or the Parent or be construed to cause the Subsidiary’s liability to perform, or procure the performance of, such obligations to exceed the Parent’s liability in respect of any such claim under the Remaining

(ii) To the extent that UBS is able to net or otherwise set off any due and payable Remaining Liability (as defined in the Asset Transfer Agreement) (other than any Remaining Liability that UBS reasonably and expressly disputes), UBS agrees that it will use such ability to net or set off in order to limit, to the fullest extent possible, UBS Switzerland’s joint and several liability for such assets and liabilities, and UBS further authorizes UBS Switzerland to exercise any such right to net or set off the Remaining Liabilities on UBS’s behalf.

whereby each of (i) and (ii) is required to take effect upon satisfaction of such Relevant Remaining Liability by the Subsidiary; in case such creditor only asks for partial satisfaction of a Relevant Remaining Liability, then such assignment and transfer shall be accordingly partial. For the avoidance of doubt, the Subsidiary shall have the right to refuse satisfaction of the Subsidiary’s Relevant Joint and Several Liability for such Relevant Remaining Liability as long as the creditor of such Relevant Remaining Liability refuses such assignment and such consent to transfer, respectively, or otherwise frustrates mala fide the transfer of the security to the Subsidiary (including through an undue early release or waiver of its security); however, such creditor shall not be required to do anything which is not under its control in order to effect such assignment or transfer.

Section 16. Swiss Resolution Power. UBS and UBS Switzerland acknowledge, and any third party asserting either party’s joint and several liability is hereby cautioned, that the liability and indemnification arrangements under this Agreement (including a party’s joint and several liability) are subject to the powers of the Swiss Financial Market Supervisory Authority (or any other Swiss authority that is competent under Swiss law) in case of financial distress, resolution or similar circumstances and in accordance with applicable Swiss law (including protective measures pursuant to article 26 Banking Act and any measures that result in the partial or complete write-down of claims or conversion of claims into equity pursuant to article 31 paragraph 3 Banking Act and article 47 ff. Banking Insolvency Ordinance (section 3 ‘Corporate Actions’) at the relevant time). The rights and obligations under this Agreement (including UBS Switzerland’s joint and several liability) shall be construed in accordance with, and are subject to, any such powers.

In case the Parent wishes to agree with any creditor of any secured Transferred Liability that such creditor assigns the claim corresponding to such Transferred Liability to the Parent and consents to the transfer of the security securing such Transferred Liability upon the Parent’s satisfaction of its Joint and Several Liability, or if the Parent wishes to avail itself of any subrogation occurring by operation of law in connection with the Parent’s satisfaction of its Joint and

(i) To the extent that UBS Switzerland is able to net or otherwise set off any due and payable Transferred Liability (as defined in the Asset Transfer Agreement) (other than any Transferred Liability that UBS Switzerland reasonably and expressly disputes), UBS Switzerland agrees that it will use such ability to net or set off in order to limit, to the fullest extent possible, UBS’s joint and several liability for such Transferred Liabilities, and UBS Switzerland further authorizes UBS to exercise any such right to net or set off the Transferred Liabilities on UBS Switzerland’s behalf.

For the avoidance of doubt, the assumption by UBS Switzerland of joint and several liability under this Clause 3 shall not be deemed to be an acknowledgement or acceptance of any claim in respect of any existing or future liability of the Issuer or UBS Switzerland under the Amended and Restated Principal Trust Deed or in respect of the Covered Bonds of any Series; therefore the assumption by UBS Switzerland of its joint and several liability to perform or procure performance of such obligations shall not defeat, impair or limit in any way any right or remedy of the Issuer or UBS Switzerland to contest or dispute the validity or amount of any claim under the Amended and Restated Principal Trust Deed or the Covered Bonds of any Series, or to assert any other defence to, or bring any claim arising from or related to the Amended and Restated Principal Trust Deed or the Covered Bonds of any Series that the Issuer or UBS Switzerland might have. In particular, if any claim under the Amended and Restated Principal Trust Deed or in respect of any Series of Covered Bonds is satisfied (in full or in part) through payment or realisation of collateral or set-off (where

Asset Transfer Agreement to the contrary, in the event of any inconsistency between the provisions of the Asset Transfer Agreement and the provisions of this Fifth Supplemental Indenture, this Fifth Supplemental Indenture will prevail with respect to the matters addressed by this agreement. To the fullest extent permitted under the Asset Transfer Agreement, the Indenture as supplemented by this Fifth Supplemental Indenture shall replace the Joint and Several Liability arising under (and as defined in) the Asset Transfer Agreement in respect of the Securities.

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