Common use of Cash Repatriation Clause in Contracts

Cash Repatriation. (a) As provided in the proviso to clause (ii)(B) of Section 2.3(c), all Cash of the Business (other than Restricted Cash) through and including June 30, 2005 (“June 30 Cash”) is to be paid prior to the Closing Date by the Companies and their Subsidiaries to Seller and its Affiliates (other than the Companies and their Subsidiaries). Schedule I to this Amendment (the “Cash Repatriation Schedule”) sets forth for purposes of this Section 2.4 (i) the aggregate amount of June 30 Cash, (ii) the amount of June 30 Cash that is held in Subsidiaries of CIH in jurisdictions outside of the United States (“Foreign Cash”) and (iii) the steps pursuant to which the Foreign Cash shall be transferred to Seller or one of its Affiliates (such steps, together with the loan from UK newco to CIMS Limited UK made in connection with the transactions contemplated by the steps (“Indemnified Loan”) and the unwinding of the Indemnified Loan, collectively, the “Indemnified Transactions”). (b) The parties understand and agree that (i) the Foreign Cash shall be transferred to Seller or one of its Affiliates pursuant to the steps outlined on the Cash Repatriation Schedule and (ii) notwithstanding anything to the contrary set forth in the Agreement, the execution and delivery of all documents, and the performance of all actions, contemplated by, or necessary or advisable, to effectuate the steps set forth on, the Cash Repatriation Schedule shall not constitute a breach or violation of any of the terms of, or cause a failure to be satisfied of any condition under, the Agreement. (c) Seller shall pay all stamp duties, capital and transfer Taxes required to be paid with respect to the Indemnified Loan and capital contributions set forth in the Cash Repatriation Schedule before the Closing Date. Notwithstanding any other provisions of this Agreement, including any of the limitations on indemnification or remedies contained herein, Seller share bear all out-of-pocket costs (“Costs”) of the Indemnified Transactions, whether incurred before or after the Closing Date, and shall indemnify and hold Buyer and its Affiliates harmless against all such Costs. (For the avoidance of doubt, Costs shall not include the principal amount of, and interest with respect to, the Indemnified Loan.) Such Costs shall include, but not be limited to, (i) any Cost that would not have been incurred if the Indemnified Transactions had not occurred, including, but not limited to any incremental Tax Cost incurred by Buyer or any of its Affiliates as a result of the Indemnified Transactions, (ii) any Costs associated with the repayment of the Indemnified Loan, whether by actual repayment or by distributing the Indemnified Loan as a dividend or otherwise to a noteholder’s direct and indirect shareholders, (iii) any Taxes, including withholding Taxes, charged (whether incurred by a Party to the Indemnified Loan or otherwise) with respect to payments on, or deemed payments on, or the distribution of, the Indemnified Loan, and (iv) any accounting, legal, or similar documentation or approval Costs associated with the Indemnified Transactions. In calculating the forgoing, Buyer shall be entitled to include any current Tax Cost incurred by Buyer or any of its Affiliates as a result of the existence of the Indemnified Loan, and shall be required to reduce such Tax Cost only by the amount of any net Tax benefit actually realized in the year such Tax Cost is incurred. For the purpose of this Section 2.4(c), (i) Buyer shall not be required to project the use of Tax benefits or deductions in future years, or otherwise take into account Tax benefits or deductions that are not actually realized, to reduce Costs otherwise payable pursuant to this Section 2.4(c) as a consequence of the indemnified pursuant hereto, (iii) Buyer and its affiliates shall be entitled to treat all other items of tax deduction, credit, depreciation or amortization as being used before any such Tax benefit from the Indemnified Transactions is used, and (iv) Buyer shall not be obligated to reimburse the Seller for any net Tax benefit received by Buyer or its Affiliates in excess of the aggregate Costs that Seller is obligated to indemnify Buyer hereunder. All calculations of Costs required to be made pursuant to this clause shall be made by Buyer in good faith, and shall be binding on the Seller absent manifest error, provided however, that Buyer shall provide such calculations of Costs to the Seller for its review and Buyer will consider in good faith all comments provided by Seller. Subject to the foregoing, Seller shall deliver any Costs requested by Buyer pursuant to this clause within 5 days written demand therefor. (d) If, in the reasonable determination of the Buyer (based upon written advice of counsel to Buyer and after consultation with Seller and due consideration of Seller’s opinion), the then outstanding principal of and accrued but unpaid interest with respect to the Indemnified Loan cannot be eliminated in full on or prior to August 31, 2006 under applicable Law in a structure as proposed by Seller by means of (A) distributions by Subsidiaries of CIMs Limited (UK) of (i) Distributable Cash, (ii) all or a portion of the Indemnified Loan and/or (iii) stock of the new UK company, (B) share redemptions by Subsidiaries of CIMs Limited (UK) using as consideration therefor solely (i) Distributable Cash, (ii) all or a portion of the Indemnified Loan and/or (ii) stock of the new UK company, and/or (C) a liquidation, merger or dissolution of the new UK company with or into CIMs Limited (UK) after the distributions or redemptions contemplated by clauses (A) and (B), in each case, in a manner that would not decrease the applicable reserves or capital surplus generated solely after June 30, 2005 or the ability of Subsidiaries of CIMs Limited (UK) to make distributions or redeem securities based solely on profits generated after June 30, 2005 assuming, for these purposes, that the Business Day immediately preceding the Closing Date was the last day of each such Subsidiaries’ fiscal year, then Seller will pay to the new UK company formed in connection with the Indemnified Transactions or as directed by Buyer in immediately available funds an amount equal to the portion of the then outstanding principal of and accrued but unpaid interest with respect to the Indemnified Loan that cannot be so eliminated. For purposes of this Section 2.4(d), with respect to each Subsidiary of CIMS Limited (UK), “Distributable Cash” shall mean an amount of Cash that is not in excess of the amount of Cash reflected on the books and records of such Subsidiary as of June 30, 2005 (reduced by the amount of Restricted Cash as of June 30, 2005 and the amount, if any, of Cash previously transferred pursuant to the Cash Repatriation Schedule and increased by the amount, if any, of Distributable Cash received by such Subsidiary pursuant to this Section 2.4).

Cash Repatriation. (a) As provided in the proviso to clause (ii)(B) of Section 2.3(c), all Cash of the Business (other than Restricted Cash) through and including June 30, 2005 (“June 30 Cash”) is to be paid prior to the Closing Date by the Companies and their Subsidiaries to Seller and its Affiliates (other than the Companies and their Subsidiaries). Schedule I to this Amendment (the “Cash Repatriation Schedule”) sets forth for purposes of this Section 2.4 (i) the aggregate amount of June 30 Cash, (ii) the amount of June 30 Cash that is held in Subsidiaries of CIH in jurisdictions outside of the United States (“Foreign Cash”) and (iii) the steps pursuant to which the Foreign Cash shall be transferred to Seller or one of its Affiliates (such steps, together with the loan from UK newco to CIMS Limited UK made in connection with the transactions contemplated by the steps (“Indemnified Loan”) and the unwinding of the Indemnified Loan, collectively, the “Indemnified Transactions”). (b) The parties understand and agree that (i) the Foreign Cash shall be transferred to Seller or one of its Affiliates pursuant to the steps outlined on the Cash Repatriation Schedule and (ii) notwithstanding anything to the contrary set forth in the Agreement, the execution and delivery of all documents, and the performance of all actions, contemplated by, or necessary or advisable, to effectuate the steps set forth on, the Cash Repatriation Schedule shall not constitute a breach or violation of any of the terms of, or cause a failure to be satisfied of any condition under, the Agreement. (c) Seller shall pay all stamp duties, capital and transfer Taxes required to be paid with respect to the Indemnified Loan and capital contributions set forth in the Cash Repatriation Schedule before the Closing Date. Notwithstanding any other provisions of this Agreement, including any of the limitations on indemnification or remedies contained herein, Seller share bear all out-of-pocket costs (“Costs”) of the Indemnified Transactions, whether incurred before or after the Closing Date, and shall indemnify and hold Buyer and its Affiliates harmless against all such Costs. (For the avoidance of doubt, Costs shall not include the principal amount of, and interest with respect to, the Indemnified Loan.) Such Costs shall include, but not be limited to, (i) any Cost that would not have been incurred if the Indemnified Transactions had not occurred, including, but not limited to any incremental Tax Cost incurred by Buyer or any of its Affiliates as a result of the Indemnified Transactions, (ii) any Costs associated with the repayment of the Indemnified Loan, whether by actual repayment or by distributing the Indemnified Loan as a dividend or otherwise to a noteholder’s direct and indirect shareholders, (iii) any Taxes, including withholding Taxes, charged (whether incurred by a Party to the Indemnified Loan or otherwise) with respect to payments on, or deemed payments on, or the distribution of, the Indemnified Loan, and (iv) any accounting, legal, or similar documentation or approval Costs associated with the Indemnified Transactions. In calculating the forgoing, Buyer shall be entitled to include any current Tax Cost incurred by Buyer or any of its Affiliates as a result of the existence of the Indemnified Loan, and shall be required to reduce such Tax Cost only by the amount of any net Tax benefit actually realized in the year such Tax Cost is incurred. For the purpose of this Section 2.4(c), (i) Buyer shall not be required to project the use of Tax benefits or deductions in future years, or otherwise take into account Tax benefits or deductions that are not actually realized, to reduce Costs otherwise payable pursuant to this Section 2.4(c) as a consequence of the Indemnified Transactions, (ii) Buyer shall be required to take into account in determining Costs payable pursuant to this Section 2.4(c), or pay to Seller, all Tax benefits (including Tax benefits carried forward from a prior year) resulting from the Indemnified Transactions that are actually realized during any taxable periods ending on or prior to December 31, 2007 and have not previously been taken into account to reduce the amount of Costs that are indemnified pursuant hereto, (iii) Buyer and its affiliates shall be entitled to treat all other items of tax deduction, credit, depreciation or amortization as being used before any such Tax benefit from the Indemnified Transactions is used, and (iv) Buyer shall not be obligated to reimburse the Seller for any net Tax benefit received by Buyer or its Affiliates in excess of the aggregate Costs that Seller is obligated to indemnify Buyer hereunder. All calculations of Costs required to be made pursuant to this clause shall be made by Buyer in good faith, and shall be binding on the Seller absent manifest error, provided however, that Buyer shall provide such calculations of Costs to the Seller for its review and Buyer will consider in good faith all comments provided by Seller. Subject to the foregoing, Seller shall deliver any Costs requested by Buyer pursuant to this clause within 5 days written demand therefor. (d) If, in the reasonable determination of the Buyer (based upon written advice of counsel to Buyer and after consultation with Seller and due consideration of Seller’s opinion), the then outstanding principal of and accrued but unpaid interest with respect to the Indemnified Loan cannot be eliminated in full on or prior to August 31, 2006 under applicable Law in a structure as proposed by Seller by means of (A) distributions by Subsidiaries of CIMs Limited (UK) of (i) Distributable Cash, (ii) all or a portion of the Indemnified Loan and/or (iii) stock of the new UK company, (B) share redemptions by Subsidiaries of CIMs Limited (UK) using as consideration therefor solely (i) Distributable Cash, (ii) all or a portion of the Indemnified Loan and/or (ii) stock of the new UK company, and/or (C) a liquidation, merger or dissolution of the new UK company with or into CIMs Limited (UK) after the distributions or redemptions contemplated by clauses (A) and (B), in each case, in a manner that would not decrease the applicable reserves or capital surplus generated solely after June 30, 2005 or the ability of Subsidiaries of CIMs Limited (UK) to make distributions or redeem securities based solely on profits generated after June 30, 2005 assuming, for these purposes, that the Business Day immediately preceding the Closing Date was the last day of each such Subsidiaries’ fiscal year, then Seller will pay to the new UK company formed in connection with the Indemnified Transactions or as directed by Buyer in immediately available funds an amount equal to the portion of the then outstanding principal of and accrued but unpaid interest with respect to the Indemnified Loan that cannot be so eliminated. For purposes of this Section 2.4(d), with respect to each Subsidiary of CIMS Limited (UK), “Distributable Cash” shall mean an amount of Cash that is not in excess of the amount of Cash reflected on the books and records of such Subsidiary as of June 30, 2005 (reduced by the amount of Restricted Cash as of June 30, 2005 and the amount, if any, of Cash previously transferred pursuant to the Cash Repatriation Schedule and increased by the amount, if any, of Distributable Cash received by such Subsidiary pursuant to this Section 2.4).