Common use of Constraints on Upstreaming Clause in Contracts

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 the repayment of Indebtedness of a Subsidiary that is a CFC or CFC Holding Company.

Constraints on Upstreaming. Notwithstanding any other provisions of this Section 2.7 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 contraryextent 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 the Borrower determines in good faith (in consultation with the Administrative Agent) that (i) any Net Cash Proceeds in respect any, and for working capital purposes 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 Foreign Subsidiary. The Borrowers and each Foreign 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 undertake to use commercially reasonable efforts to take actions reasonably 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 by after application of the applicable local law to permit such repatriation), and once such repatriation above provision shall be net of any of such affected Net Cash Proceeds is permitted under costs, expenses or taxes incurred by Holdings (or its direct or indirect members) or the applicable local law, such repatriation will be promptly effected Borrowers and such repatriated Net Cash Proceeds will be promptly (the Restricted Subsidiaries 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 arising as a result thereofof 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 repayment United States (whether or not such amount are used in or excluded from the determination 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 the repayment of Indebtedness of a Subsidiary that is a CFC or CFC Holding Companyany mandatory prepayment hereunder).

Constraints on Upstreaming. Notwithstanding any other provisions of this Section 2.7 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 contraryextent 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 the Borrower determines in good faith (in consultation with the Administrative Agent) that (i) any Net Cash Proceeds in respect any, and for working capital purposes 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 Foreign Subsidiary. The Borrowers and each Foreign 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 undertake to use commercially reasonable efforts to take actions reasonably 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 by after application of the applicable local law to permit such repatriation), and once such repatriation above provision shall be net of any of such affected Net Cash Proceeds is permitted under costs, expenses or taxes incurred by Holdings (or its direct or indirect members) or the applicable local law, such repatriation will be promptly effected Borrowers and such repatriated Net Cash Proceeds will be promptly (the Restricted Subsidiaries 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 arising as a result thereofof 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 repayment United States (whether or not such amount are used in or excluded from the determination 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 the repayment of Indebtedness of a Subsidiary that is a CFC or CFC Holding Companyany mandatory prepayment hereunder).

Constraints on Upstreaming. Notwithstanding any other provisions The mandatory prepayments of the Applicable Borrower pursuant to Sections 2.13(c)(iv), (v), (vii) and (viii) 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 Agreement shall 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 extent and for so long as, but only so long as, as the applicable local law will not permit repatriation of funds from the Applicable Borrower’s Restricted Upstream Subsidiaries would be required to the United States of America effect such prepayments and could reasonably be expected to (with the Borrower hereby agreeing to i) cause such Subsidiary Borrower or its Restricted Upstream Subsidiaries 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 suffer material adverse costs or tax cost consequence 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) with respect 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-UK Subsidiary) or (iii) expose individual directors of such Borrower or any of its Restricted Upstream Subsidiaries to such Net Cash Proceeds, then the Borrower may elect that such Net Cash Proceeds so affected be retained by the applicable Subsidiary, provided thatrisk of personal liability, in the each 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 as reasonably determined by the Applicable Borrower in good faith that would have been payable faith. The Applicable Borrower and its Restricted Upstream Subsidiaries, if any, shall take all commercially reasonable actions to overcome or reserved against if eliminate any such Net Cash Proceeds had been repatriatedrestrictions and/or minimize any such costs of prepayment to make the relevant prepayment. If at a later date the Applicable Borrower 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 prepayments or reinvestments as if funds and make such Net Cash Proceeds had been received by the Borrower rather than such Subsidiary or (y) such Net Cash Proceeds shall be applied to the repayment of Indebtedness of a Subsidiary that is a CFC or CFC Holding Companymandatory prepayment.

Constraints on Upstreaming. Notwithstanding any other provisions of this Section 2.7 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 contraryextent that Holdingsthe Borrower 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 the Borrower determines in good faith (in consultation with the Administrative Agent) that (i) any Net Cash Proceeds in respect any, and for working capital purposes 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 Foreign Subsidiary. The BorrowersBorrower and each Foreign 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 undertake to use commercially reasonable efforts to take actions reasonably 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’Borrower’s reasonable business judgment). Notwithstanding the foregoing, any prepayments required by after application of the applicable local law to permit such repatriation), and once such repatriation above provision shall be net of any of such affected Net Cash Proceeds is permitted under costs, expenses or taxes incurred by Holdings (or its direct or indirect members) or the applicable local law, such repatriation will be promptly effected Borrowersthe Borrower and such repatriated Net Cash Proceeds will be promptly (the Restricted Subsidiaries 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 arising as a result thereofof compliance with the preceding sentence, and the BorrowersBorrower 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 BorrowersBorrower 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 repayment United States (whether or not such amount are used in or excluded from the determination 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 the repayment of Indebtedness of a Subsidiary that is a CFC or CFC Holding Companyany mandatory prepayment hereunder).

Constraints on Upstreaming. Notwithstanding any other provisions provision of this Section 2.7 2.14, with respect to the contraryany amount of Net Cash Proceeds subject to Section 2.14(a) or any amount of Consolidated Excess Cash Flow subject to Section 2.14(c), in each case, attributable to a Foreign Subsidiary, if the Borrower Representative determines in good faith (in consultation with that the Administrative Agent) that upstreaming of cash equal to such amount by such Foreign Subsidiary (i) would violate any Net Cash Proceeds local Law (e.g., financial assistance, thin capitalization, corporate benefit, or the fiduciary and statutory duties of the directors of such Subsidiary) or any term of any Organizational Document applicable to such Foreign Subsidiary, or (ii) would reasonably be expected to result in respect any greater than de minimus adverse costs or tax consequences to Parent and its Restricted Subsidiaries (it being understood that, for the avoidance of an Asset Disposition or Casualty Event attributable doubt, costs and/or taxes arising as a result of upstreaming of cash equal 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 such amount exceeding 2.5% of Americasuch amount would be greater than de minimus), then the portion of such amount shall be excluded from such Net Cash Proceeds so affected will not be required or such Consolidated Excess Cash Flow, as applicable; provided, for one year from the date on which the obligation to be applied to prepay Term Loans at the times provided in this Section but may be retained by make the applicable Subsidiary so long as, but only so long asprepayment arose, the applicable local law will not permit repatriation to the United States of America (with the Borrower hereby agreeing to cause Borrowers and such Foreign Subsidiary to shall use commercially reasonable efforts to take actions reasonably required by overcome or eliminate any such restrictions or minimize to a de minimus amount any such costs of prepayment and, if successful, shall promptly make the applicable local law to permit such repatriation)prepayment, 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 unless 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 Representative shall 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 such actions would have been payable require the expenditure of a material amount of funds. For the avoidance of doubt, nothing in this Agreement (including this Section 2.14) shall require the Borrowers or reserved against if such Net Cash Proceeds had been any of their Restricted Subsidiaries to cause any amounts to be repatriated, to whether directly or indirectly, and whether such prepayments repatriation is actual or reinvestments as if such Net Cash Proceeds had been received by deemed under Section 956 of the Borrower rather than such Subsidiary or (y) such Net Cash Proceeds shall be applied Code, to the repayment United States (whether or not such amounts are used in or excluded from the determination of Indebtedness the amount of a Subsidiary that is a CFC or CFC Holding Companyany mandatory prepayment hereunder).