Constraints on Upstreaming. Notwithstanding any other provisions of this Section 2.14, all prepayments referred to in Sections 2.14(a) through 2.14(e) attributable to any Foreign Subsidiary 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 Holdings or its Restricted 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 Borrower Representative in good faith). 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 to repay local foreign indebtedness, if any, and for working capital purposes of the applicable Foreign Subsidiary. The Borrowers and each Foreign Subsidiary will undertake to use 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 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 Holdings (or its direct or indirect members) or the Borrowers and the Restricted Subsidiaries and arising as a result of compliance with the preceding sentence, and the Borrowers and the Restricted Subsidiaries shall be permitted to make, directly or indirectly, dividends or distributions to their Affiliates in an amount sufficient to cover such tax liability, costs or expenses. For the avoidance of doubt, nothing in this Agreement (including this Section 2.14) shall require the Borrowers or any of the Restricted Subsidiaries to cause any amounts to be repatriated, whether directly or indirectly, and whether such repatriation is actual or deemed under Section 956 of the Code, to the United States (whether or not such amount are used in or excluded from the determination of the amount of any mandatory prepayment hereunder).
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. 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.
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. 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.
