176
Dividend and other Payment Restrictions Affecting Subsidiaries
The Issuer will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to
exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
(1)
pay dividends or make any other distributions on its Capital Stock to the Issuer or any of its Restricted
Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Issuer or any of its Restricted Subsidiaries;
(2)
make loans or advances to the Issuer or any of its Restricted Subsidiaries; or
(3)
sell, lease or transfer any of its properties or assets to the Issuer or any of its Restricted Subsidiaries,
provided
that (x) the priority of any preferred stock in receiving dividends or liquidating distributions prior to dividends
or liquidating distributions being paid on common stock and (y) the subordination of (including the application
of any standstill period to) loans or advances made to the Issuer or any Restricted Subsidiary to other
Indebtedness incurred by the Issuer or any Restricted Subsidiary, shall not be deemed to constitute such an
encumbrance or restriction.
However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of:
(1)
agreements governing Existing Indebtedness and Credit Facilities as in effect on the Issue Date and any
amendments, restatements, modifications, renewals, supplements, increases, refundings, replacements or
refinancings of those agreements;
provided
that the amendments, restatements, modifications, renewals,
supplements, increases, refundings, replacements or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those contained in those agreements
on the Issue Date as determined in good faith by a responsible accounting or financial officer of the Issuer;
(2)
the Indenture, the Notes (including Additional Notes) and the Note Guarantees;
(3)
applicable law, rule, regulation or order or the terms of any license, authorization, approval, concession or
permit or similar restriction;
(4)
any instrument governing Indebtedness or Capital Stock of a Person acquired by the Issuer or any of its
Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or
Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or
the property or assets of the Person, so acquired;
provided
that, in the case of Indebtedness, such Indebtedness
was permitted by the terms of the Indenture to be incurred;
(5)
customary non-assignment and similar provisions in contracts, leases and licenses (including, without
limitation, licenses of intellectual property) entered into in the ordinary course of business;
(6)
purchase money obligations for property (including Capital Stock) acquired in the ordinary course of business,
Capital Lease Obligations and mortgage financings that impose restrictions on the property purchased or
leased of the nature described in clause (3) of the preceding paragraph;
(7)
any agreement for the sale or other disposition of assets, including without limitation an agreement for the sale
or other disposition of the Capital Stock or assets of a Restricted Subsidiary, that restricts distributions by the
applicable Restricted Subsidiary pending the sale or other disposition;
(8)
Permitted Refinancing Indebtedness;
provided
that the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained
in the agreements governing the Indebtedness being refinanced as determined in good faith by a responsible
accounting or financial officer of the Issuer);
(9)
Liens permitted to be incurred under the provisions of the covenant described above under the caption "
—
Liens
" that limit the right of the debtor to dispose of the assets subject to such Liens;
(10)
provisions limiting the disposition or distribution of assets or property in, or transfer of Capital Stock of, joint
venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar
agreements (including agreements entered into in connection with a Restricted Investment), which limitations
are applicable only to the assets, property or Capital Stock that are the subject of such agreements;
(11)
agreements governing other Indebtedness of the Issuer or any of its Restricted Subsidiaries or the issuance of
preferred stock by a Restricted Subsidiary or the payment of dividends thereon in accordance with the terms
thereof permitted to be incurred pursuant to an agreement entered into subsequent to the Issue Date or issued,
as applicable, in accordance with the covenant described under the caption "—
Incurrence of Indebtedness and
Issuance of Preferred Stock
"; and any amendments, restatements, modifications, renewals, supplements,
increases, refundings, replacements or refinancings of those agreements;
provided
that any such encumbrance
or restriction contained in such Indebtedness are not materially more restrictive taken as a whole than
customary in comparable financings in such jurisdictions as such Indebtedness is being incurred or will not
