Constraints on Upstreaming. Notwithstanding any other provisions of this Section 2.7 to the contrary, if the Borrower determines in good faith (in consultation with the Administrative Agent) that (i) any Net Cash Proceeds in respect of an Asset Disposition or Casualty Event attributable to a Subsidiary that is CFC or a CFC Holding Company are prohibited, restricted or delayed by applicable local law from being repatriated to the United States of America, then the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section but may be retained by the applicable Subsidiary so long as, but only so long as, the applicable local law will not permit repatriation to the United States of America (with the Borrower hereby agreeing to cause such Subsidiary to use commercially reasonable efforts to take actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than three Business Days after such repatriation) applied (net of additional Taxes determined by the Borrower in good faith to be payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section to the extent provided herein and (ii) repatriation of any or all of such Net Cash Proceeds would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds, then the Borrower may elect that such Net Cash Proceeds so affected be retained by the applicable Subsidiary, provided that, in the case of this clause (ii), within 365 days of the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to prepayments or reinvestments pursuant to this Section, (x) the Borrower shall apply an amount otherwise required on account of such Net Cash Proceeds, less the amount of additional Taxes determined by the Borrower in good faith that would have been payable or reserved against if such Net Cash Proceeds had been repatriated, to such prepayments or reinvestments as if such Net Cash Proceeds had been received by the Borrower rather than such Subsidiary or (y) such Net Cash Proceeds shall be applied to ...
Constraints on Upstreaming. The mandatory prepayments of the Borrower pursuant to Sections 2.13(c), (v), (vii) and (viii) of this Agreement shall not be required to the extent and for so long as the repatriation of funds from the Parent Guarantor’s Restricted Upstream Subsidiaries would be required to effect such prepayments and could reasonably be expected to (i) cause the Parent Guarantor, the Borrower or its Restricted Upstream Subsidiaries to suffer material adverse costs or tax consequences (including the imposition of withholding taxes and taking into account any foreign tax credit or benefit actually realized in connection with such repatriation), (ii) result in a violation of applicable local law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such non-U.S. Subsidiary or non-U.K. Subsidiary) or (iii) expose individual directors of the Parent Guarantor or any of its Restricted Upstream Subsidiaries to the risk of personal liability, in each case as reasonably determined by the Parent Guarantor in good faith. The Parent Guarantor and its Restricted Upstream Subsidiaries, if any, shall take all commercially reasonable actions to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment to make the relevant prepayment. If at a later date the Parent Guarantor or any of its Restricted Upstream Subsidiaries is able to repatriate all or any portion of such funds in order to make such mandatory prepayment without incurring a material risk of suffering a material adverse cost or tax consequence or such prohibition, restriction or delay is no longer applicable, as applicable, it shall promptly take all such actions necessary to repatriate such funds and make such mandatory prepayment.
Constraints on Upstreaming. Notwithstanding any other provisions of this Section 5.3, all prepayments referred to in this Section 5.3 attributable to the UK Borrowers and their Subsidiaries are subject to permissibility under local law (e.g., financial assistance, thin capitalization, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant subsidiaries). Further, there will be no requirement to make any prepayment to the extent that the Company or the UK Borrowers or their Subsidiaries would suffer material adverse costs or tax consequences as a result of upstreaming cash to make such prepayments (including the imposition of withholding taxes) (as determined by the UK Borrowers in good faith and “material adverse costs or tax consequences” for these purposes means the costs and/or tax arising as a result of making such prepayment(s) would exceed 5% of the amount of such payment at that time). The non-application of any such prepayment amounts as a result of the foregoing provisions will not constitute an Event of Default and such amounts shall be available for working capital purposes of the UK Borrowers and their Subsidiaries. The UK Borrowers and their Subsidiaries will undertake to use all commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant prepayment (all as determined in accordance with the UK Borrowers’ reasonable business judgment). Notwithstanding the foregoing, any prepayments required after application of the above provision shall be net of any costs, expenses or taxes incurred by the Company (or its direct or indirect members) or the UK Borrowers and their Subsidiaries and arising as a result of compliance with the preceding sentence, and the UK Borrowers and their Subsidiaries shall be permitted to make, directly or indirectly, a dividend or distribution to its affiliates in an amount sufficient to cover such tax liability, costs or expenses.
Constraints on Upstreaming. The mandatory prepayments of the Borrower pursuant to Sections Section 2.13(c)(iv), (vi) and (vii) of this Agreement shall not be required to the extent and for so long as the repatriation of funds from the Borrower’s Non-U.S. Subsidiaries would be required to effect such prepayments and could reasonably be expected to (i) cause the Borrower or its Non-U.S. Subsidiaries to suffer material adverse costs or tax consequences (including the imposition of withholding taxes), (ii) result in a violation of applicable local law or (iii) expose individual directors of the Borrower or any Non-U.S. Subsidiary to the risk of personal liability, in each case as reasonably determined by Borrower in good faith. The Borrower and its Non-U.S. Subsidiaries, if any, will undertake to take all commercially reasonable actions to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment to make the relevant prepayment. If at a later date the Borrower or any of its Non-U.S. Subsidiaries is able to repatriate all or any portion of such funds in order to make such mandatory prepayment without incurring a material risk of suffering a material adverse cost or tax consequence, it shall promptly take all such actions necessary to repatriate such funds and make such mandatory prepayment.
Constraints on Upstreaming. The mandatory prepayments of the Borrower pursuant to Sections 2.13(c)(iv), (v) and (vi) of this Agreement shall not be required to the extent and for so long as the repatriation of funds from the Borrower’s Foreign Subsidiaries would be required to effect such prepayments and would cause the Borrower or its Foreign Subsidiaries to suffer material adverse costs or tax consequences (including the imposition of withholding taxes), would result in a violation of applicable local law or would expose individual directors of the Borrower or any Foreign Subsidiary to the risk of personal liability, in each case as reasonably determined by Borrower in good faith. The Borrower and its Foreign Subsidiaries, if any, will undertake to take all commercially reasonable actions to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment to make the relevant prepayment. If at a later date the Borrower or any of its Foreign Subsidiaries is able to repatriate all or any portion of such funds in order to make such mandatory prepayment without incurring a material adverse cost or tax consequence, it shall promptly take all such actions necessary to repatriate such funds and make such mandatory prepayment.
