Common use of Financial Assistance Clause in Contracts

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party under this Agreement other than such Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned subsidiaries would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan Party’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of Obligations) at the time or times the relevant payment is requested from such Swiss Loan Party, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, in particular, Section 2.17(d) shall be construed in a manner consistent with the provisions herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) to obtain a maximum benefit from the relevant Swiss Loan Party’s liabilities under this Agreement, each Swiss Loan Party undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan Party; (ii) confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its Affiliates.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party Obligor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss Loan Party’s own liabilities Obligor) (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 liabilities the payment of one of its wholly owned subsidiaries would, at the time payment is due, a (constructive) dividend (Gewinnausschüttung) by such Swiss Obligor or would otherwise be restricted under Swiss law and practice (inter aliathen applicable, prohibiting capital repayments or restricting profit distributions) such Swiss Obligor’s aggregate liability for Restricted Obligations shall not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to exceed the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan Party’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of ObligationsObligor’s freely disposable equity (frei verfügbares Eigenkapital) at the time or times it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the relevant payment “Freely Disposable Amount”). (b) This limitation shall only apply to the extent it is requested from such a requirement under applicable law at the time the Swiss Obligor is required to perform Restricted Obligations under the Loan Party, and further provided that such Documents. Such limitation (as may apply from time to time or not) shall not (generally or definitively) free such the Swiss Loan Party Obligor from payment its obligations hereunder in excess thereofof the Freely Disposable Amount, but merely postpone the payment performance date therefor thereof until such times as payment is when the Swiss Obligor has again permitted notwithstanding such limitationfreely disposable equity. Any and all indemnities and The limitation set out in this Section shall not apply to the extent the Swiss Obligor guarantees contained in or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Obligor or to wholly owned direct or indirect subsidiaries of the Swiss Obligor. (c) If the enforcement of the obligations of the Swiss Obligor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Obligor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative 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 Swiss Obligor’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 Loan Documents. (d) The Swiss Obligor and any direct holding company of the Swiss Obligor which is a party to a Loan Document shall procure that the Swiss Obligor 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 Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the Swiss Obligor of the Freely Disposable Amount based on such audited interim balance sheet, (iv) the provision of a confirmation from the auditors of the Swiss Obligor that a payment of the Swiss Obligor under the Loan Documents in particular, Section 2.17(d) shall be construed an amount corresponding to the Freely Disposable Amount is in a manner consistent compliance with the provisions herein containedof 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 Swiss Obligor 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 in relation to Restricted Obligations with a minimum of limitations. (be) In respect of Restricted ObligationsIf so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, each the Swiss Loan Party shallObligor: (i) if and 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 extent required liability to such tax by notification pursuant to applicable law in force at (including tax treaties) rather than payment of the relevant time:tax; (Aii) subject to any applicable double taxation treaty, shall deduct the Swiss anticipatory withholding tax at such rate (Verrechnungssteuer) at the rate of being 35% (or such other rate on the date hereof) as in force from time to timetime if the notification procedure pursuant to clause (a) from any payment made above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by it in respect notification if the notification procedure pursuant to clause (a) applies for a part of Restricted Obligations; (B) the Swiss withholding tax only; and shall pay within the time allowed any such deduction taxes deducted to the Swiss Federal Tax Administration; and (Ciii) shall promptly notify (or ensure that the Company notifies) the Administrative Agent that such a notification or, as the case may be, deduction has been made made, and provide the Administrative Agent with evidence that such a deduction 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. (f) In the case of a deduction of Swiss withholding tax, all in accordance with Section 2.17(athe Swiss Obligor 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 Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties); , and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Obligor to secure such refund. (h) To the extent the Swiss Obligor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the Swiss Obligor 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 Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount, (ii) such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-gross up is permitted under the laws of Switzerland then in force. (c) If applicable law, and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) to obtain a maximum benefit from the relevant Swiss Loan Party’s liabilities under this Agreement, each Swiss Loan Party undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan Party; (ii) confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by such steps are permitted under the Loan Documents. If a quotaholders’ meeting refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Obligor, subject to any right of set-off of such Swiss Loan Credit Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations pursuant to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its AffiliatesDocuments.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party Obligor under this Agreement other than such Swiss Loan PartyObligor’s own liabilities or liabilities of one of its wholly owned subsidiaries Wholly-Owned Subsidiaries would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided provided, however, that such limited amount shall at no time be less than such Swiss Loan PartyObligor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of Obligations) at the time or times the relevant payment is requested from such Swiss Loan Party, and Obligor; provided further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Obligor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, in particular, Section 2.17(dSections 4.02(b) and 9.02 shall be construed in a manner consistent with the provisions herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party Obligor shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a4.02(a) and Section 4.02(f); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a4.02(a) or indemnify the secured parties Administrative Agent, each Lender and each Issuing Bank in accordance with Section 2.17(d4.02(b) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) Agent, each Lender and each Issuing Bank to obtain a maximum benefit from the relevant Swiss Loan PartyObligor’s liabilities under this Agreement, each Swiss Loan Party Obligor undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan PartyObligor; (ii) confirmation of the auditors of such Swiss Loan Party Obligor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such the relevant Swiss Loan Party Obligor of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested permitted by applicable law, write up any of the Administrative Agent assets of the relevant Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets and provided that such measures write up would not have materially adverse tax consequences for such Swiss Loan Party Obligor or any of its Affiliates.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party Obligor under this Agreement other than such Swiss Loan PartyObligor’s own liabilities or liabilities of one of its wholly owned subsidiaries Wholly-Owned Subsidiaries would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided provided, however, that such limited amount shall at no time be less than such Swiss Loan PartyObligor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of Obligations) at the time or times the relevant payment is requested from such Swiss Loan Party, and Obligor; provided further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Obligor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, in particular, Section 2.17(dSections 4.02(b) and 9.02 shall be construed in a manner consistent with the provisions herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party Obligor shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a4.02(a) and Section 4.02(f); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a4.02(a) or indemnify the secured parties Administrative Agent and each Lender in accordance with Section 2.17(d4.02(b) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) and each Lender to obtain a maximum benefit from the relevant Swiss Loan PartyObligor’s liabilities under this Agreement, each Swiss Loan Party Obligor undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan PartyObligor; (ii) confirmation of the auditors of such Swiss Loan Party Obligor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such the relevant Swiss Loan Party Obligor of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested permitted by applicable law, write up any of the Administrative Agent assets of the relevant Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets and provided that such measures write up would not have materially adverse tax consequences for such Swiss Loan Party Obligor or any of its Affiliates.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party under this Agreement other than such Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned subsidiaries would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan Party’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of Obligations) at the time or times the relevant payment is requested from such Swiss Loan Party, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, in particular, Section 2.17(d) shall be construed in a manner consistent with the provisions herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties Secured Parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured partiesSecured Parties) to obtain a maximum benefit from the relevant Swiss Loan Party’s liabilities under this Agreement, each Swiss Loan Party undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan Party; (ii) confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its Affiliates.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party the guarantee obligations under this Agreement Guarantee of MK Switzerland or any other than such Guarantor organized under the laws of Switzerland (collectively with MK Switzerland, the “Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned subsidiaries Guarantors”) would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted permitted, in particular if and to the extent that such Swiss Guarantor guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations of its direct or indirect parent companies (up-stream guarantee) or sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan PartyGuarantor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 art. 675(2) and art. 671(1) and (2), no. 3, of the Swiss Federal Code of Obligations) at the time or times the relevant payment under or pursuant to this Guarantee is requested from such Swiss Loan PartyGuarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Finance Documents including, in particular, Section 2.17(d2.15(c) of the Credit Agreement shall be construed in a manner consistent with the provisions provisos herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party Guarantor shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) A. subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer; “Swiss Withholding Tax”) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) B. pay any such deduction to the Swiss Federal Tax Administration; and (C) C. notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a)2.15(a) of the Credit Agreement; and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a2.15(a) of the Credit Agreement or indemnify the secured parties Secured Parties in accordance with Section 2.17(d2.15(c) of the Credit Agreement in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent Agents (or the other secured partiesSecured Parties) to obtain a maximum benefit from under the relevant Swiss Loan Party’s liabilities under guarantee obligations of this AgreementGuarantee, each Swiss Loan Party Guarantor undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment fulfilment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan PartyGuarantor; (ii) confirmation of the auditors of such Swiss Loan Party Guarantor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party Guarantor of the resulting profit distribution; and (iv) all such other measures legally permitted at such time necessary or useful to allow such Swiss Loan Party Guarantor to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its Affiliateslimitations.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability the joint and several liabilities under Section 2.10(f) of any Swiss Loan Party under this Agreement other than such Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned subsidiaries Borrower would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted permitted, in particular if and to the extent that such Swiss Borrower guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations of its direct or indirect parent companies (up-stream guarantee) or direct or indirect sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan PartyBorrower’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 art. 798, of the Swiss Federal Code of Obligations) at the time or times the relevant payment under or pursuant to Section 2.10(f) is requested from such Swiss Loan PartyBorrower, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Borrower from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Finance Documents including, in particular, Section 2.17(d) shall be construed in a manner consistent with the provisions provisos herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party Borrower shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer; “Swiss Withholding Tax”) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties Secured Parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured partiesSecured Parties) to obtain a maximum benefit from under the relevant Swiss Loan Party’s joint and several liabilities under this AgreementSection 2.10(f), each Swiss Loan Party Borrower undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan PartyBorrower; (ii) confirmation of the auditors of such Swiss Loan Party Borrower that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party Borrower of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party Borrower to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party Borrower or any of its Affiliates.

Financial Assistance. (a) This Guarantee does not apply to any liability to the extent that it would result in this Guarantee constituting unlawful financial assistance within the meaning of Section 677 of the Companies Xxx 0000 or any equivalent provision of any applicable law. (b) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party the guarantee obligations under this Agreement Guarantee of MK Switzerland or any other than such Guarantor organized under the laws of Switzerland (collectively with MK Switzerland, the “Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned subsidiaries Guarantors”) would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted permitted, in particular if and to the extent that such Swiss Guarantor guarantees obligations other than obligations of one of its subsidiaries (i.e., obligations of its direct or indirect parent companies (up-stream guarantee) or direct or indirect sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan PartyGuarantor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of Obligations) at the time or times the relevant payment under or pursuant to this Guarantee is requested from such Swiss Loan PartyGuarantor, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Guarantor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, in particular, Section 2.17(d) of the Credit Agreement shall be construed in a manner consistent with the provisions provisos herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) to obtain a maximum benefit from the relevant Swiss Loan Party’s liabilities under this Agreement, each Swiss Loan Party undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan Party; (ii) confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its Affiliates.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party Guarantor becomes liable under this Agreement or any other Loan Document for obligations of any other Obligor (other than the wholly owned direct or indirect subsidiaries of such Swiss Loan Party’s own liabilities 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 liabilities the payment of one of its wholly owned subsidiaries would, at the time payment is due, a (constructive) dividend (Gewinnausschüttung) by such Swiss Guarantor or would otherwise be restricted under Swiss law and practice (inter aliathen applicable, prohibiting capital repayments or restricting profit distributions) such Swiss Guarantor’s aggregate liability for Restricted Obligations shall not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to exceed the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan Party’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of ObligationsGuarantor’s freely disposable equity (frei verfügbares Eigenkapital) at the time or times it becomes liable including, without limitation, any statutory reserves which can be transferred into unrestricted, distributable reserves, in accordance with Swiss law (the relevant payment “Freely Disposable Amount”). (b) This limitation shall only apply to the extent it is requested from such a requirement under applicable law at the time the Swiss Guarantor is required to perform Restricted Obligations under the Loan Party, and further provided that such Documents. Such limitation (as may apply from time to time or not) shall not (generally or definitively) free such the Swiss Loan Party Guarantor from payment its obligations hereunder in excess thereofof the Freely Disposable Amount, but merely postpone the payment performance date therefor thereof until such times as payment is when the Swiss Guarantor has again permitted notwithstanding such limitationfreely disposable equity. Any and all indemnities and The limitation set out in this Section shall not apply to the extent the Swiss Guarantor guarantees contained in or otherwise secures any amounts borrowed under any Loan Document which are on-lent to the Swiss Guarantor or to wholly owned direct or indirect subsidiaries of the Swiss Guarantor. (c) If the enforcement of the obligations of the Swiss Guarantor under the Loan Documents would be limited due to the effects referred to in this Agreement, the Swiss Guarantor shall further, to the extent permitted by applicable law and Swiss accounting standards and upon request by the Administrative 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 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 Loan Documents. (d) The Swiss Guarantor and any direct holding company of the Swiss Guarantor which is a party to a Loan Document shall procure that the 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 Administrative Agent, including, without limitation, (i) the passing of any shareholders’ resolutions to approve any payment or other performance under this Agreement or any other Loan Documents, (ii) the provision of an audited interim balance sheet, (iii) the provision of a determination by the 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 Swiss Guarantor that a payment of the Swiss Guarantor under the Loan Documents in particular, Section 2.17(d) shall be construed an amount corresponding to the Freely Disposable Amount is in a manner consistent compliance with the provisions herein containedof 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 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 in relation to Restricted Obligations with a minimum of limitations. (be) In respect of Restricted ObligationsIf so required under applicable law (including tax treaties) at the time it is required to make a payment under this Agreement, each the Swiss Loan Party shallGuarantor: (i) if and 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 extent required liability to such tax by notification pursuant to applicable law in force at (including tax treaties) rather than payment of the relevant time:tax; (Aii) subject to any applicable double taxation treaty, shall deduct the Swiss anticipatory withholding tax at such rate (Verrechnungssteuer) at the rate of being 35% (or such other rate on the date hereof) as in force from time to timetime if the notification procedure pursuant to sub-paragraph (a) from any payment made above does not apply; or shall deduct the Swiss withholding tax at the reduced rate resulting after discharge of part of such tax by it in respect notification if the notification procedure pursuant to sub-paragraph (a) applies for a part of Restricted Obligations; (B) the Swiss withholding tax only; and shall pay within the time allowed any such deduction taxes deducted to the Swiss Federal Tax Administration; and (Ciii) shall promptly notify (or ensure that the Company notifies) the Administrative Agent that such a notification or, as the case may be, deduction has been made made, and provide the Administrative Agent with evidence that such a deduction 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. (f) In the case of a deduction of Swiss withholding tax, all in accordance with Section 2.17(athe 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 Agreement or any other Loan Document, will, as soon as possible after such deduction: (i) request a refund of the Swiss withholding tax under applicable law (including tax treaties); , and (ii) pay to the Administrative Agent upon receipt any amount so refunded. (g) The Administrative Agent shall co-operate with the Swiss Guarantor to secure such refund. (i) To the extent the Swiss Guarantor is required to deduct Swiss withholding tax pursuant to this Agreement, and if the Freely Disposable Amount is not fully utilized, the 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 Administrative Agent is equal to the amount which would have been paid if no deduction of Swiss withholding tax had been required, provided that (i) the aggregate amount paid (including the additional amount) shall in any event be limited to the Freely Disposable Amount and (ii) such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a) or indemnify the secured parties in accordance with Section 2.17(d) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-gross up is permitted under the laws of Switzerland then in force. (c) If applicable law, and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) to obtain a maximum benefit from the relevant Swiss Loan Party’s liabilities under this Agreement, each Swiss Loan Party undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan Party; (ii) confirmation of the auditors of such Swiss Loan Party that the relevant amount represents the maximum freely distributable profits; (iii) approval by such steps are permitted under the Loan Documents. If a quotaholders’ meeting refund is made to a Credit Party, such Credit Party shall transfer the refund so received to the Swiss Guarantor, subject to any right of set-off of such Swiss Loan Credit Party of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations pursuant to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its AffiliatesDocuments.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability of any Swiss Loan Party Obligor under this Agreement other than such Swiss Loan PartyObligor’s own liabilities or liabilities of one of its wholly owned subsidiaries Wholly-Owned Subsidiaries would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided provided, however, that such limited amount shall at no time be less than such Swiss Loan PartyObligor’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 of the Swiss Federal Code of Obligations) at the time or times the relevant payment is requested from such Swiss Loan Party, and Obligor; provided further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Obligor from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Documents including, in particular, Section 2.17(dSections 4.02(b) and 9.02 shall be construed in a manner consistent with the provisions herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party Obligor shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a4.02(a) and Section 4.02(f); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a4.02(a) or indemnify the secured parties Administrative Agent and each Lender in accordance with Section 2.17(d4.02(b) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force.. ACTIVE 214387177 (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent (or the other secured parties) and each Lender to obtain a maximum benefit from the relevant Swiss Loan PartyObligor’s liabilities under this Agreement, each Swiss Loan Party Obligor undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan PartyObligor; (ii) confirmation of the auditors of such Swiss Loan Party Obligor that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such the relevant Swiss Loan Party Obligor of the resulting profit distribution; and (iv) all such other measures legally permitted at such time to allow such Swiss Loan Party to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested permitted by applicable law, write up any of the Administrative Agent assets of the relevant Swiss Obligor that are shown in its balance sheet with a book value that is significantly lower than the market value of the assets and provided that such measures write up would not have materially adverse tax consequences for such Swiss Loan Party Obligor or any of its Affiliates.

Financial Assistance. (a) If and to the extent that a payment in fulfilling a liability the joint and several liabilities under Section 2.08(f) of any Swiss Loan Party under this Agreement other than such Swiss Loan Party’s own liabilities or liabilities of one of its wholly owned subsidiaries Borrower would, at the time payment is due, under Swiss law and practice (inter alia, prohibiting capital repayments or restricting profit distributions) not be permitted permitted, in particular if and to the extent that such Swiss Borrower guarantees obligations other than obligations of one of its subsidiaries (i.e. obligations of its direct or indirect parent companies (up-stream guarantee) or sister companies (cross-stream guarantee)) (such obligations, “Restricted Obligations”), then such obligations and payment amount shall from time to time be limited to the amount permitted to be paid; provided that such limited amount shall at no time be less than such Swiss Loan PartyBorrower’s profits and reserves available for distribution as dividends (being the balance sheet profits and any reserves available for this purpose, in each case in accordance with Article 798 art. 675(2) and art. 671(1) and (2), no. 3, of the Swiss Federal Code of Obligations) at the time or times the relevant payment under or pursuant to Section 2.08(f) is requested from such Swiss Loan PartyBorrower, and further provided that such limitation (as may apply from time to time or not) shall not (generally or definitively) free such Swiss Loan Party Borrower from payment obligations hereunder in excess thereof, but merely postpone the payment date therefor until such times as payment is again permitted notwithstanding such limitation. Any and all indemnities and guarantees contained in the Loan Finance Documents including, in particular, Section 2.17(d2.15(c) shall be construed in a manner consistent with the provisions provisos herein contained. (b) In respect of Restricted Obligations, each Swiss Loan Party Borrower shall: (i) if and to the extent required by applicable law in force at the relevant time: (A) subject to any applicable double taxation treaty, deduct Swiss anticipatory tax (Verrechnungssteuer; “Swiss Withholding Tax”) at the rate of 35% (or such other rate as in force from time to time) from any payment made by it in respect of Restricted Obligations; (B) pay any such deduction to the Swiss Federal Tax Administration; and (C) notify (or ensure that the Company notifies) the Administrative Agent that such a deduction has been made and provide the Administrative Agent with evidence that such a deduction has been paid to the Swiss Federal Tax Administration, all in accordance with Section 2.17(a2.15(a); and (ii) to the extent such a deduction is made, not be obliged to either gross-up in accordance with Section 2.17(a2.15(a) or indemnify the secured parties Secured Parties in accordance with Section 2.17(d2.15(c) in relation to any such payment made by it in respect of Restricted Obligations unless grossing-up is permitted under the laws of Switzerland then in force. (c) If and to the extent requested by the Administrative Agent and if and to the extent this is from time to time required under Swiss law (restricting profit distributions), in order to allow the Administrative Agent Agents (or the other secured partiesSecured Parties) to obtain a maximum benefit from under the relevant Swiss Loan Party’s joint and several liabilities under this AgreementSection 2.08(f), each Swiss Loan Party Borrower undertakes to promptly implement all such measures and/or to promptly obtain the fulfillment of all prerequisites allowing it to promptly make the requested payment(s) hereunder from time to time, including the following: (i) preparation of an up-to-date audited balance sheet of such Swiss Loan PartyBorrower; (ii) confirmation of the auditors of such Swiss Loan Party Borrower that the relevant amount represents the maximum freely distributable profits; (iii) approval by a quotaholders’ meeting of such Swiss Loan Party Borrower of the resulting profit distribution; and (iv) all such other measures legally permitted at such time necessary or useful to allow such Swiss Loan Party Borrower to make the payments agreed hereunder with a minimum of limitations to the extent such measures have been specifically and reasonably requested by the Administrative Agent and provided that such measures would not have materially adverse tax consequences for such Swiss Loan Party or any of its Affiliateslimitations.