Common use of Restricted Payments, etc Clause in Contracts

Restricted Payments, etc. (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer. (b) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii)).

Restricted Payments, etc. Unless (ax) The the Leverage Ratio shall be equal to or less than 3.50:1, as set forth in the most recent Compliance Certificate delivered in accordance with Section 7.1.1(c) or (y) irrespective of whether the preceding clause (x) is applicable, an Investment Grade Period shall have commenced at any time following the Restatement Effective Date (irrespective of whether such Investment Grade Period shall have ended), the Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made by Subsidiaries (i) to the Borrower, or to Wholly Owned Subsidiaries or (ii) proportionately to all holders of Capital Securities, including to KCS Minority Interest Subsidiaries; (b) dividends or distributions made by the Borrower payable solely in Capital Securities of the Borrower (other than Disqualified Stock), including, without limitation, pursuant to any conversion of any Dividend Notes into Capital Securities of the Borrower (other than Disqualified Stock); (c) the exchange of Capital Securities of the Borrower for other Capital Securities of the Borrower (other than Disqualified Stock); (d) payments or distributions to dissenting stockholders pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets permitted by the terms of this Agreement; (e) cash payments in lieu of the issuance of fractional shares; and (f) Restricted Payments by the Borrower; provided, however, that after (i) the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making amount of such Restricted Payment Payments shall not exceed an aggregate amount equal to $125,000,000 plus (1) 50% of Net Income accrued on a cumulative basis during the period (deemed for purposes of this Section to be one accounting period) commencing on October 1, 2011 and (y) ending on the Leverage Ratio has been less than 5:1 for last day of the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of declaration of such Restricted Payment, and Payment (which amount shall continue to not be less than 5:1 zero) (the “Restricted Payment Accrual Termination Date”) plus (2) an amount equal to the Dollar equivalent of total cash contributions to the equity capital of Borrower after the Original Effective Date resulting from the proceeds of a private placement or a public issuance of Capital Securities (other than Disqualified Stock), less the aggregate amount of (x) Investments made pursuant to Section 7.2.5(p), (y) Capital Expenditures made or committed to be made pursuant to the proviso to Section 7.2.7 and (z) Indebtedness prepaid pursuant to clause (a)(iii) of Section 7.2.16, less (3) the aggregate amount of any Restricted Payment declared or distributed pursuant to this Section 7.2.6(f) during the period beginning on a pro forma basis after giving effect thereto; provided, further, that in the case Original Effective Date and ending on the last day of Restricted Payments of Existing Assets, the Fiscal Quarter immediately preceding any such Restricted Payment also satisfies Accrual Termination Date (excluding, for the requirements avoidance of doubt, any redemption, prepayment or defeasance of the Subject Notes or any Indebtedness incurred pursuant to Section 7.2.2(m)), less (4) the aggregate amount of any payment made during the period beginning on the Original Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date, pursuant to Section 7.2.16(a)(v), in respect of any redemption, prepayment or defeasance of Material Debt that has a Permitted Existing Asset Transfer. scheduled maturity date later than the Final Maturity Date, less (b5) Notwithstanding the foregoing, however, aggregate amount of any Investment made pursuant to Section 7.2.5(n) during the period beginning on the Original Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date; (ii) the Borrower or any shall have delivered to the Administrative Agent the applicable financial statements for the Fiscal Quarter ending on such Restricted Payment Accrual Termination Date in accordance with Section 7.1.1; and (iii) as of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount time of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect theretodividend or distribution, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on occurred and be continuing or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii))would result therefrom.

Restricted Payments, etc. None of the Group Companies will declare or pay any Restricted Payments (aother than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) The of such Person), except that: (i) any Wholly-Owned Subsidiary of the Borrower will not, and will not permit may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary of the Borrower or to any Subsidiary Guarantor; (ii) any non-Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary of the Borrower or ratably to all holders of its Restricted Subsidiaries to, declare outstanding Equity Interests; (iii) so long as no Default or make a Restricted Payment, Event of Default is then in existence or make any deposit for any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1would otherwise arise therefrom, the Borrower or any of its Restricted Subsidiaries may declare and make cash Restricted Payments if to Holdings to redeem or repurchase Equity Interests (or Equity Equivalents) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (B) other holders of Equity Interests or Equity Equivalents in Parent Holdings; provided that in all such cases (1) no Default or Event of Default is then in existence or would otherwise arise therefrom, (2) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed the greater of (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making of such Restricted Payment $75,000,000 and (y) 30% of Consolidated EBITDA in the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect theretoaggregate in any fiscal year; provided, further, that (x) such amount, if not so expended in the case of fiscal year for which it is permitted, may be carried forward for Restricted Payments in the next fiscal year and (y) Restricted Payments made pursuant to this clause (iii) during any fiscal year shall be deemed made first in respect of Existing Assets, amounts carried over from the immediately preceding fiscal year prior to such Restricted Payment also satisfies the requirements date pursuant to clause (x) above and second in respect of a Permitted Existing Asset Transfer.amounts permitted for such fiscal year as provided above; (biv) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make cash Restricted Payments to Holdings in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ and Parent Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings and Parent Holdings (including employee and compensation expenditures, directors’ and officers’ insurance premiums and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Parent Holdings’ Investment in the Borrower and its Subsidiaries, up to an aggregate amount of $1,000,000 for each fiscal year, (B) the then currently due fees and expenses of Holdings’ and Parent Holdings’ independent directors, (C) the then currently due taxes payable by Holdings and Parent Holdings solely on account of the income of Holdings and Parent Holdings related to their respective Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that the Borrower shall be entitled to any refund Holdings or Parent Holdings receives relating to any such taxes and (D) to make cash payments in lieu of the issuance of fractional shares representing insignificant interests with respect to the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests of Parent Holdings; (v) the Borrower may make cash Restricted Payments to Holdings in amounts not to exceed the amount that is the lesser of (i) with the amount of Capital Contributions made into necessary to pay the amount that the Borrower after would have been required to pay for federal, state, local or other taxes on income if it were deemed to be the Effective Datecommon parent of an affiliated group (within the meaning of Section 1504 of the Code) of which only it and its Subsidiaries were members and (ii) the net amount of the relevant tax that Parent Holdings actually owes to the relevant taxing authority; provided that (x) such payments may be made only in respect of the period during which the Borrower is consolidated with Holdings and Parent Holdings for purposes of the payment of such taxes and (y) such payments attributable to the income of any Unrestricted Subsidiary may be made only to the extent that the Unrestricted Subsidiary has made cash payments for such purpose to the Borrower or its Restricted Subsidiaries; (vi) the Borrower may make Restricted Payments in an amount not to exceed, together with any amounts utilized to prepay Indebtedness pursuant to Section 7.08(b)(iv), (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and $50,000,000 plus (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A1) with property no Event of Default shall have occurred and be continuing, and (referred to as "Contributed Property"2) which had been previously contributed to the Maintenance Leverage Ratio of the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the its Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined Subsidiaries as of the last day of the most recent period of four consecutive fiscal quarters in respect of which financial statements have been delivered pursuant to Section 6.01 which precedes or ends on the date of contributionsuch Restricted Payment, calculated on a Pro-Forma Basis, would be no greater than 3.25:1.00, the Available Amount at such time; (vii) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x1) no Event of Default shall have occurred and be continuing, and (2) the Maintenance Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the last day of the most recent period of four consecutive fiscal quarters in respect of which financial statements have been delivered pursuant to Section 6.01 which precedes or ends on the date of such Restricted Payment satisfies the requirements of Payment, calculated on a Permitted Existing Asset Transfer (orPro-Forma Basis, if lesswould be no greater than 3.00:1.00, the amount available to be made as a Borrower may make additional Restricted Payment pursuant to this clause Payments; provided that clauses (b)(ii)1) and (y2) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by not prohibit Restricted Payments within 60 days after the date the date of Contributed Property previously made pursuant declaration thereof, if on the date of declaration the Restricted Payments would have complied with clauses (1) and (2); (viii) the Borrower may make Restricted Payments to fund interest payments by Parent Holdings on any Indebtedness of Parent Holdings up to an aggregate amount of $12,000,000 in any fiscal year; (ix) the Borrower may make Restricted Payments to Parent Holdings to fund any payment with respect to, or early unwind or settlement of, any Permitted Call Spread Swap Agreement, but solely to the extent necessary to repurchase the “delta hedge” amount related to the issuance of the underlying Equity Equivalents by Parent Holdings, determined in accordance with customary practice; (x) the Borrower and it Restricted Subsidiaries may make Restricted Payments not otherwise permitted by this clause Section 7.07 in an aggregate amount at any time outstanding not exceeding the Cumulative Equity Amount at such time; and (b)(ii))xi) distributions or payments of Securitization Fees.

Restricted Payments, etc. None of the Group Companies will declare or pay any Restricted Payments (aother than Restricted Payments payable solely in Equity Interests (exclusive of Debt Equivalents) The of such Person), except that: (i) any Wholly-Owned Subsidiary of the Borrower will not, and will not permit may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary of the Borrower or to any Subsidiary Guarantor; (ii) any non-Wholly-Owned Subsidiary of the Borrower may make Restricted Payments to the Borrower or to any Wholly-Owned Subsidiary of the Borrower or ratably to all holders of its Restricted Subsidiaries to, declare outstanding Equity Interests; (iii) so long as no Default or make a Restricted Payment, Event of Default is then in existence or make any deposit for any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1would otherwise arise therefrom, the Borrower or any of its Restricted Subsidiaries may declare and make cash Restricted Payments if to Holdings to redeem or repurchase Equity Interests (or Equity Equivalents) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (B) other holders of Equity Interests or Equity Equivalents in Parent Holdings; provided that in all such cases (1) no Default or Event of Default is then in existence or would otherwise arise therefrom, (2) the aggregate amount of all cash paid in respect of all such shares so redeemed or repurchased does not exceed the greater of (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making of such Restricted Payment $100,000,000 and (y) 35% of Consolidated EBITDA in the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect theretoaggregate in any fiscal year; provided, further, that (x) such amount, if not so expended in the case of fiscal year for which it is permitted, may be carried forward for Restricted Payments in the next fiscal year and (y) Restricted Payments made pursuant to this clause (iii) during any fiscal year shall be deemed made first in respect of Existing Assets, amounts carried over from the immediately preceding fiscal year prior to such Restricted Payment also satisfies the requirements date pursuant to clause (x) above and second in respect of a Permitted Existing Asset Transfer.amounts permitted for such fiscal year as provided above; (biv) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make cash Restricted Payments to Holdings in amounts not to exceed the amount necessary to pay, (A) the then currently due fees and expenses of Holdings’ and Parent Holdings’ counsel, accountants and other advisors and consultants, and other operating and administrative expenses of Holdings and Parent Holdings (including employee and compensation expenditures, directors’ and officers’ insurance premiums and other similar costs and expenses) incurred in the ordinary course of business that are for the benefit of, or are attributable to, or are related to, including the financing or refinancing of, Parent Holdings’ Investment in the Borrower and its Subsidiaries, up to an aggregate amount of $1,000,000 for each fiscal year, (B) the then currently due fees and expenses of Holdings’ and Parent Holdings’ independent directors, (C) the then currently due taxes payable by Holdings and Parent Holdings solely on account of the income of Holdings and Parent Holdings related to their respective Investment in the Borrower and its Subsidiaries and the reasonable expenses of preparing returns reflecting such taxes; provided that the Borrower shall be entitled to any refund Holdings or Parent Holdings receives relating to any such taxes and (D) to make cash payments in lieu of the issuance of fractional shares representing insignificant interests with respect to the exercise of warrants, options or other securities convertible or exchangeable for Equity Interests of Parent Holdings; (v) the Borrower may make cash Restricted Payments to Holdings in amounts not to exceed the amount that is the lesser of (i) with the amount of Capital Contributions made into necessary to pay the amount that the Borrower after would have been required to pay for federal, state, local or other taxes on income if it were deemed to be the Effective Datecommon parent of an affiliated group (within the meaning of Section 1504 of the Code) of which only it and its Subsidiaries were members and (ii) the net amount of the relevant tax that Parent Holdings actually owes to the relevant taxing authority; provided that (x) such payments may be made only in respect of the period during which the Borrower is consolidated with Holdings and Parent Holdings for purposes of the payment of such taxes and (y) such payments attributable to the income of any Unrestricted Subsidiary may be made only to the extent that the Unrestricted Subsidiary has made cash payments for such purpose to the Borrower or its Restricted Subsidiaries; (vi) the Borrower may make Restricted Payments in an amount not to exceed, together with any amounts utilized to prepay Indebtedness pursuant to Section 7.08(b)(iv), (A) no Default exists immediately before and after giving effect to the making greater of such Restricted Payment (x) $75,000,000 and (y) 3% of Consolidated Total Assets as of the last day of the most recent period of four consecutive fiscal quarters in respect of which financial statements have been delivered pursuant to Section 6.01, in each case at any time outstanding plus (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A1) with property no Event of Default shall have occurred and be continuing, and (referred to as "Contributed Property"2) which had been previously contributed to the Maintenance Leverage Ratio of the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the its Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined Subsidiaries as of the last day of the most recent period of four consecutive fiscal quarters in respect of which financial statements have been delivered pursuant to Section 6.01 which precedes or ends on the date of contributionsuch Restricted Payment, calculated on a Pro-Forma Basis, would be no greater than 3.75:1.00, the Available Amount at such time; (vii) so long as (1) no Event of Default shall have occurred and be continuing, and (2) the Maintenance Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the last day of the most recent period of four consecutive fiscal quarters in respect of which financial statements have been delivered pursuant to Section 6.01 which precedes or ends on the date of such Contributed PropertyRestricted Payment, calculated on a Pro-Forma Basis, would be no greater than 3.00:1.00, the Borrower may make additional Restricted Payments; provided that clauses (1) available for future and (2) shall not prohibit Restricted Payments under within 60 days after the date the date of declaration thereof, if on the date of declaration the Restricted Payments would have complied with clauses (1) and (2); (viii) the Borrower may make Restricted Payments to fund interest payments by Parent Holdings on any Indebtedness of Parent Holdings up to an aggregate amount of $12,000,000 in any fiscal year; (ix) the Borrower may make Restricted Payments to Parent Holdings to fund any payment with respect to, or early unwind or settlement of, any Permitted Call Spread Swap Agreement, but solely to the extent necessary to repurchase the “delta hedge” amount related to the issuance of the underlying Equity Equivalents by Parent Holdings, determined in accordance with customary practice; (x) the Borrower and it Restricted Subsidiaries may make Restricted Payments not otherwise permitted by this clause Section 7.07 in an aggregate amount at any time outstanding not exceeding the Cumulative Equity Amount at such time; (b)(iixi) distributions or payments of Securitization Fees; and (xii) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make cash Restricted Payments to Holdings to redeem or repurchase Equity Interests (or Equity Equivalents) from (A) officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise, or (B) with Existing Assets other holders of Equity Interests or Equity Equivalents in Parent Holdings; provided that in all such cases (1) no Default or Event of Default is then in existence or would otherwise arise therefrom and (2) the aggregate amount of all cash paid in respect of all such shares so long redeemed or repurchased does not exceed $200,000,000; provided, further, that the Maintenance Leverage Ratio of the Borrower and its Restricted Subsidiaries as (x) of the last day of the most recent period of four consecutive fiscal quarters in respect of which financial statements have been delivered pursuant to Section 6.01 which precedes or ends on the date of such Restricted Payment satisfies the requirements of Payment, calculated on a Permitted Existing Asset Transfer (orPro-Forma Basis, if less, the amount available to would be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii))3.50:1.00.

Restricted Payments, etc. (a) The Borrower will not, and will not permit any of its Restricted Borrowing Base Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, except: (a) Restricted Payments made by Borrowing Base Subsidiaries to the Borrower or to Borrowing Base Subsidiaries that are wholly-owned Subsidiaries of the Borrower; (b) so long as no Event of Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, Restricted Payments made by the Borrower or its Borrowing Base Subsidiaries to the members of the Borrower for the Borrower’s share of income taxes (provided that prior to making such Restricted Payment, Borrower shall provide the Administrative Agent with a calculation of such attributable taxes in detail and form reasonably acceptable to the Administrative Agent); (c) following the Initial Public Offering, so long as no Default, Event of Default or Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, the Borrower may make Restricted Payments pursuant to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Subsidiaries as established in good faith by the Borrower’s board of directors; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make such Restricted Payments if shall not exceed $5,000,000 in any Fiscal Year; and (xd) so long as (i) no Default, Event of Default hereunder or any default under other Total Debt exists immediately Borrowing Base Deficiency has occurred and is continuing, or shall be caused thereby, and (ii) both before and after giving effect to thereto the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer. (b) Notwithstanding the foregoing, howeverBorrowing Base Utilization Percentage does not exceed 75%, the Borrower or any may make a special distribution in an amount not in excess of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date$12,500,000 each fiscal quarter; provided that (A) no Default exists immediately before and after giving effect Borrower may only carry over one fiscal quarter’s worth of such distribution to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii))subsequent quarter.

Restricted Payments, etc. (a) The Parent and the Borrower will not, and will not permit any of its Restricted their respective Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment; provided, however, that after other than the delivery following: (a) Restricted Payments made by (i) Subsidiaries of the most recent financial statements and Compliance Certificate required by Section 7.1.1Parent to the Parent, the Borrower or any Subsidiary Guarantor or (ii) Subsidiaries of its Restricted the Parent which are not Subsidiary Guarantors to other Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to of the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for Parent which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer.are not Subsidiary Guarantors; (b) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments so long as (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before has occurred and after giving effect to the making of such Restricted Payment is continuing or would occur as a result thereof and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) the Parent would be in pro forma compliance with property (referred to as "Contributed Property") which had been previously contributed the covenants set forth in Section 7.2.4 for the period of twelve consecutive calendar months ended immediately prior to the Borrower date of the making of such Restricted Payment (giving pro forma effect to such Restricted Payment as a Property Contributionof the first day of such twelve-month period), Restricted Payments (x) in an amount not to exceed $10,000,000 in any Fiscal Year made by the Parent in the form of cash dividends on the Affiliate Preferred Stock in accordance with the terms of the Affiliate Preferred Stock Purchase Agreement; provided, however, that to the extent any such property is similar dividends on the Affiliate Preferred Stock have been deferred and have not been paid in any Fiscal Year, the Parent may pay such deferred dividends, in whole or in part, in any succeeding Fiscal Year in accordance with the terms of the Affiliate Preferred Stock Purchase Agreement to the extent the conditions set forth above in subclauses (i) and (ii) of this clause (b) would be satisfied with respect to such payment of deferred dividends and all material respects other payments of dividends on such Affiliate Preferred Stock during such Fiscal Year, and (y) made by any Subsidiary to the Parent to be used in accordance with (and for purposes of) clause (x); and (c) so long as no Default shall have occurred and be continuing, Restricted Payments in respect of (i) cash dividends on common stock of the Parent, and (ii) the repurchase or other acquisition of shares, or options to purchase shares, of Capital Securities of the Parent from employees, former employees, directors or former directors of the Parent or any of its Subsidiaries (or permitted transferees of such employees, former employees, directors or former directors) upon death, disability, retirement or termination of employment or pursuant to the terms of agreements (including employment agreements) or plans (or amendments thereto) approved by the Board of Directors of the Parent under which such Persons purchase or sell, or are granted the option to purchase or sell, shares of such stock; provided, however, that (x) the aggregate amount of Restricted Payments pursuant to this clause (c) shall not exceed $3,000,000 (as determined by such amount may be increased with the Arranging Agentsconsent of the Required Lenders) in any calendar year (unless, including as to in the Fair Market Value thereofcase of Restricted Payments of the type described in clause (ii) hereof, such Restricted Payments are made with the proceeds of insurance policies and the shares of Capital Securities are repurchased from the executors, administrators, testamentary trustees, heirs, legatees or beneficiaries), (y) to the Contributed Property and extent that less than the full amount of Restricted Payment under Payments permitted pursuant to this clause (b)(iic) in any calendar year are made, such unused portion of the permitted amount may be carried forward and used, in whole or in part, for Restricted Payments pursuant to this clause (c) in any succeeding year, and (z) unless the Required Lenders otherwise consent, no Restricted Payment of the type described in clause (i) hereof shall cause a reduction in be permitted unless, for each of the amount (equal to the Fair Market Value (determined three Fiscal Quarters immediately last ended as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if lessPayment, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount Total Leverage Ratio has been reduced by Restricted Payments of Contributed Property previously made pursuant less than 3.0 to this clause (b)(ii))1.0.

Restricted Payments, etc. (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries (other than a Receivables Subsidiary) to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required other than (a) Restricted Payments made by Section 7.1.1, Subsidiaries to the Borrower or any wholly owned Subsidiaries, (b) cashless exercises of its Restricted Subsidiaries may declare and make stock options, (c) cash payments by Borrower in lieu of the issuance of fractional shares upon exercise or conversion of Equity Equivalents, (d) Restricted Payments if in connection with the share repurchases required by the employee stock ownership programs or required under employee agreements, (xe) so long as no Specified Default hereunder has occurred and is continuing or any default under other Total Debt exists immediately would result therefrom, and both before and after giving effect to the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, as if such Restricted Payment also satisfies had been made on the requirements last day of a Permitted Existing Asset Transfer. (b) Notwithstanding the foregoing, howeverMeasurement Period, the Borrower or any of its Restricted Subsidiaries may declare and make is in compliance with Section 7.2.4 for such Measurement Period, Restricted Payments (i) not otherwise permitted by this Section 7.2.6 in an aggregate amount, together with the aggregate amount of Capital Contributions made into Indebtedness under any Pro Forma Unsecured Indebtedness Documents, the Borrower after 2014 Senior Note Documents, the Effective Date; provided that 2016 Senior Note Documents or the 2020 Senior Note Documents paid or prepaid in any Fiscal Year pursuant to clause (A1)(B) of the proviso to Section 7.2.8(a), not to exceed $150,000,000 in any Fiscal Year plusthe Available Retained Excess Cash FlowAmount and (f) so long as no Specified Default exists immediately has occurred and is continuing or would result therefrom, Restricted Payments not otherwise permitted by this Section 7.2.6 to the extent that, both before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) if such Restricted Payment satisfies had been made on the requirements last day of a Permitted Existing Asset Transfer (or, if lessthe Measurement Period, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) Leverage Ratio for such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii))Measurement Period would not exceed 3.00:1.00.

Restricted Payments, etc. (a) The Borrower will notDeclare or make, and will not permit directly or indirectly, any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make incur any deposit for obligation (contingent or otherwise) to do so, or issue or sell any Restricted Payment; providedEquity Interests or accept any capital contributions, howeverexcept that, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer. (b) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before shall have occurred and be continuing at the time of any action described below or would result therefrom: (i) each Subsidiary may make Restricted Payments to the Borrower, any Subsidiaries of the Borrower that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made; (ii) the Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests (but not Debt Equivalents) of such Person; (iii) the Borrower and each Subsidiary may purchase, redeem or otherwise acquire its common Equity Interests with the proceeds received from the substantially concurrent issue of new common Equity Interests; (iv) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contributionmay redeem or repurchase Equity Interests (or Equity Equivalents) from officers, employees and directors of any Group Company (or their estates, spouses or former spouses) upon the death, permanent disability, retirement or termination of employment of any such Person or otherwise; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed amounts spent on redemptions or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously repurchases made pursuant to this clause Section 7.06(iv), when aggregated with repurchases of the Borrower’s common stock permitted by Section 7.06(v), shall not exceed the sum of (b)(iii) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year; and (v) with the approval of the board of directors of the Borrower and if the Borrower is Solvent after giving effect to such Restricted Payment, the Borrower may make Restricted Payments consisting of the repurchase of its common stock; provided, that the aggregate amounts spent on repurchases of the Borrower’s common stock permitted by this Section 7.06(v) when aggregated with redemptions or repurchases made pursuant to Section 7.06(iv)), shall not exceed the sum of (i) $50,000,000 plus (ii) starting with the fiscal year ending December 31, 2007, 50% of the Excess Cash Flow of the Borrower and its Subsidiaries for the immediately preceding fiscal year.

Restricted Payments, etc. (a) The Borrower will not make any Restricted Payment, other than dividend payments needed to pay the tax liability and legal, accounting and other professional fees and expenses of the Managing General Partner if (i) there exists a Default or an Event of Default or if after giving effect to such Restricted Payment a Default or an Event of Default would exist, or (ii) the pro forma ratio of the Coverage Test is less than 2.00 if prior to December 31, 1997, 2.25 if thereafter but prior to December 31, 1998, or 2.50 thereafter, for the period of four Fiscal Quarters immediately preceding the date of such Restricted Payment. Other than this restriction, the Borrower may make quarterly Restricted Payments in an amount not to exceed Available Cash in the preceding Fiscal Quarter. Upon satisfaction of the Coverage Test and subsequent declaration by the Borrower, Restricted Payments must be made within 60 days and if the payment would have been permitted as of the date such declaration, such payment shall be remitted if made during such 60 day period. Available Cash shall exclude without duplication (x) in each Fiscal Quarter a reserve equal to at least 50% of the aggregate amount of all interest payments to be made in respect of the Working Capital Loans in respect of all Indebtedness of the Borrower and the Restricted Subsidiaries upon which interest is due semiannually or less frequently to be made in the next Fiscal Quarter (assuming, in the case of Indebtedness bearing interest at fluctuating interest rates which cannot be determined in advance, that the interest rate in effect on the last Business Day of the immediately preceding Fiscal Quarter will remain in effect until such Indebtedness in due to be paid), (y) with respect to Acquisition Loans (as of the Acquisition Loan Conversion Date) and any Indebtedness secured equally and ratably with the Notes of which principal is payable annually, in the third Fiscal Quarter immediately preceding each Fiscal Quarter in which any scheduled principal payment is due with respect to such Acquisition Loans and other Indebtedness (a "principal payment quarter"), a reserve equal to at least 25% of the aggregate amount of all principal to be paid in respect of such Acquisition Loans and other such Indebtedness secured equally and ratably with the Notes in such principal payment quarter; in the second Fiscal Quarter immediately preceding a principal payment quarter, a reserve equal to at least 50% of the aggregate 100 amount of all principal to be paid in respect of such Acquisition Loans and other such Indebtedness in such principal payment quarter; and in the Fiscal Quarter immediately preceding a principal payment quarter, a reserve equal to at least 75% of the aggregate amount of all principal to be paid in respect of such Acquisition Loans and other such Indebtedness in such principal payment quarter, and (z) with respect to any other Indebtedness secured equally and ratably with the Notes of which principal is payable semiannually, in each Fiscal Quarter which immediately precedes a Fiscal Quarter in which principal is payable in respect of such Indebtedness a reserve equal to at least 50% of the aggregate amount of all principal to be paid in respect of such Indebtedness in the next Fiscal Quarter. Such reserve for principal amounts to be paid shall be reduced by the aggregate principal amount of all binding, irrevocable letters of credit established to refinance such principal. (b) The Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, declare directly or make a indirectly, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of such Restricted Payment, Subsidiary to (a) pay dividends or make any deposit for other distributions on or in respect of its capital stock, or pay any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, indebtedness owed to the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of such Restricted PaymentSubsidiary, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in the case of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer. (b) Notwithstanding the foregoing, however, make loans or advances to the Borrower or any Restricted Subsidiary or (c) transfer any of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; properties or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed assets to the Borrower as or any Restricted Subsidiary, except for such encumbrances or restrictions existing under or by reason of customary non-assignment provisions in any lease governing a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction leasehold interest or other contract entered into in the amount (equal to the Fair Market Value (determined as ordinary course of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) business consistent with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii))past practices.

Restricted Payments, etc. (a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment, other than: (a) Restricted Payments made by Subsidiaries (i) to the Borrower, or to Wholly Owned Subsidiaries or (ii) proportionately to all holders of Capital Securities, including to KCS Minority Interest Subsidiaries; (b) dividends or distributions made by the Borrower payable solely in Capital Securities of the Borrower (other than Disqualified Stock), including, without limitation, pursuant to any conversion of any Dividend Notes into Capital Securities of the Borrower (other than Disqualified Stock); (c) the exchange of Capital Securities of the Borrower for other Capital Securities of the Borrower (other than Disqualified Stock); (d) payments or distributions to dissenting stockholders pursuant to applicable law or in connection with the settlement or other satisfaction of legal claims made pursuant to or in connection with a consolidation, merger or transfer of assets permitted by the terms of this Agreement; (e) cash payments in lieu of the issuance of fractional shares; and (f) Restricted Payments by the Borrower; provided, however, that after (i) the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect to the making amount of such Restricted Payment Payments shall not exceed an aggregate amount equal to $125,000,000 plus (1) 50% of Net Income accrued on a cumulative basis during the period (deemed for purposes of this Section to be one accounting period) commencing on October 1, 2011 and (y) ending on the Leverage Ratio has been less than 5:1 for last day of the most recently ended Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of declaration of such Restricted Payment, and Payment (which amount shall continue to not be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that in zero) (the case of Restricted Payments of Existing Assets, such “Restricted Payment also satisfies Accrual Termination Date”) plus (2) an amount equal to the requirements Dollar equivalent of a Permitted Existing Asset Transfer. (b) Notwithstanding total cash contributions to the foregoing, however, the Borrower or any equity capital of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date resulting from the proceeds of a private placement or a public issuance of Capital Securities (other than Disqualified Stock), less the aggregate amount of (x) Investments made pursuant to Section 7.2.5(p), (y) Capital Expenditures made or committed to be made pursuant to the proviso to Section 7.2.7 and (z) Indebtedness prepaid pursuant to clause (a)(iii) of Section 7.2.16, less (3) the aggregate amount of any Restricted Payment declared or distributed pursuant to this Section 7.2.6(f) during the period beginning on the Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date (excluding, for the avoidance of doubt, any redemption, prepayment or defeasance of the Subject Notes or any Indebtedness incurred pursuant to Section 7.2.2(m)), less (4) the aggregate amount of any payment made during the period beginning on the Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date, pursuant to Section 7.2.16(a)(v), in respect of any redemption, prepayment or defeasance of Material Debt that has a scheduled maturity date later than the Final Maturity Date, less (5) the aggregate amount of any Investment made pursuant to Section 7.2.5(n) during the period beginning on the Effective Date and ending on the last day of the Fiscal Quarter immediately preceding any such Restricted Payment Accrual Termination Date; provided that (Aii) no Default exists immediately before the Borrower shall have delivered to the Administrative Agent the applicable financial statements for the Fiscal Quarter ending on such Restricted Payment Accrual Termination Date in accordance with Section 7.1.1; and after giving effect to (iii) as of the time of the making of such Restricted Payment and (B) after giving effect theretodividend or distribution, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on occurred and be continuing or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii))would result therefrom.

Restricted Payments, etc. (a) The No Borrower will not, and or will not permit any of its Restricted Subsidiaries to, declare or make a Restricted Payment, or make any deposit for any Restricted Payment; provided, however, that after other than the delivery following: (a) Restricted Payments (i) made by Subsidiaries of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the a Borrower or a Subsidiary Guarantor to any Borrower or any Subsidiary Guarantor, (ii) made by Subsidiaries of the Parent which are not Borrowers or Subsidiary Guarantors to other Subsidiaries of the Parent which are not Borrowers or Subsidiary Guarantors or (iii) in the case of Subsidiaries which are not wholly-owned, made by such Subsidiaries (A) on a pro rata basis to each holder of Capital Securities of the applicable class of such Subsidiary or (B) in connection with non-pro rata redemptions of its Restricted Subsidiaries may declare Capital Securities (other than Capital Securities held by the Borrowers and make their respective Subsidiaries); PROVIDED that the aggregate amount of Restricted Payments if made pursuant to this CLAUSE (xB) by Subsidiaries which are not Borrowers or Subsidiary Guarantors, when taken together with the aggregate amount of all Investments made in Subsidiaries which are not Borrowers or Subsidiary Guarantors in accordance with SECTION 7.2.5(f) hereof, shall not exceed $2,500,000 over the term of this Agreement; (b) Restricted Payments made by VHC to the Parent to the extent necessary to enable the Parent to (i) pay its overhead expenses (including fees in respect of advisory services) in an amount not to exceed $500,000 (which amount shall include not more than $250,000 in respect of advisory services) in the aggregate in any Fiscal Year, (ii) make payments in respect of taxes, (iii) so long as (A) no Default hereunder shall have occurred and be continuing on the date such Restricted Payment is declared or any default under other Total Debt exists immediately before and to be made, nor would a Default result from the making of such Restricted Payment, (B) after giving effect to the making of such Restricted Payment and (y) VHC shall be in PRO FORMA compliance with the Leverage Ratio has been less than 5:1 covenants set forth in SECTION 7.2.4 for the most recently ended recent full Fiscal Quarter for which a Compliance Certificate was delivered immediately preceding the date of the payment of such Restricted PaymentPayment for which the relevant financial information has been delivered pursuant to CLAUSE (a) or CLAUSE (b) of SECTION 7.1.1, and (C) an Authorized Officer of VHC shall continue have delivered a certificate to be less than 5:1 the Agents in form and substance satisfactory to the Agents (including a calculation of VHC's compliance with the covenants set forth in SECTION 7.2.4) certifying as to the accuracy of CLAUSES (b)(iii)(A) and (b)(iii)(B) above, purchase, redeem, acquire or otherwise retire for value shares of Capital Securities of the Parent held by directors, officers or employees of the Parent or any of its Subsidiaries, or options on any such shares or related stock appreciation rights or similar securities owned by such directors, officers or employees (or their estates or beneficiaries under their estates), in all cases only upon death, disability, retirement, termination of employment or pursuant to the terms of such stock option plan or any other agreement under which such shares of Capital Securities, options, related rights or similar securities were issued (collectively referred to as a pro forma basis after giving effect thereto; provided"REDEMPTION") in an aggregate amount, further, that in the case of this CLAUSE (b)(iii), not to exceed $1,000,000 in any Fiscal Year; PROVIDED, that VHC can carry forward to each succeeding Fiscal Year the aggregate amount of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transfer. permitted (bbut not made) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause CLAUSE (b)(ii)b)(iii) and (y) such Existing Assets shall have in prior Fiscal Years, with up to a Fair Market Value no greater than maximum amount of $5,000,000 over the aggregate Fair Market Value term of all Contributed Property contributed on or prior to such date (as such amount has been reduced by this Agreement of the Restricted Payments of Contributed Property previously permitted to be made pursuant to this clause CLAUSE (b)(ii)b)(iii) and (iv) repurchase the shares of common stock of the Parent held by Xxxxxx X. Xxxxxxxx and related trusts as of the Closing Date for an aggregate purchase price not to exceed $2,000,000 and, in connection therewith, forgive some or all of the loans made to Xx. Xxxxxxxx and/or such trusts in connection with their purchase of such shares; (c) Restricted Payments made by VHC to the Parent in an aggregate amount not exceeding the aggregate amount of capital contributions made by the Parent to VHC with Net Equity Proceeds, net of the amount of such capital contributions received by VHC and used for a Permitted Purpose or which are required to be used to prepay Loans in accordance with SECTION 3.1.1(c)(i).

Restricted Payments, etc. (a) The Borrower will not make any Restricted Payment, other than: (i) dividend payments needed to pay the tax liability and legal, accounting and other professional fees and expenses of the Managing General Partner; and (ii) provided that (A) no Default exists, both immediately before and after giving effect to such Restricted Payment and (B) the pro forma ratio of the Coverage Test is greater than 2.50:1.00 for the period of four Fiscal Quarters immediately preceding the date of such Restricted Payment, quarterly Restricted Payments in an aggregate amount not to exceed Available Cash in the preceding Fiscal Quarter; provided that so long as the aggregate amount of such payments does not exceed (1) $5,200,000 for Restricted Payments made during any Fiscal Quarter ending March 31st or September 30th or (2) $7,550,000 for Restricted Payments made during any Fiscal Quarter ending June 30th or December 31st, the pro forma ratio of the Coverage Test for the period of four Fiscal Quarters immediately preceding the date of such Restricted Payment shall be greater than 2.00:1.00. Upon satisfaction of the Coverage Test and subsequent declaration by the Borrower, Restricted Payments must be made within 60 days and if the Restricted Payment would have been permitted as of the date of such declaration, such Restricted Payment shall be permitted if made during such 60 day period. (b) The Borrower will not, and will not cause or permit any Restricted Subsidiary to, directly or indirectly, create or otherwise cause or suffer 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 or in respect of its Capital Stock, or pay any indebtedness owed to the Borrower, (2) make loans or advances to the Borrower or (3) transfer any of its Restricted Subsidiaries to, declare properties or make a Restricted Payment, or make any deposit for any Restricted Payment; provided, however, that after the delivery of the most recent financial statements and Compliance Certificate required by Section 7.1.1, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments if (x) no Default hereunder or any default under other Total Debt exists immediately before and after giving effect assets to the making Borrower, except for such encumbrances or restrictions existing under or by reason of such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter for which customary non-assignment provisions in any lease governing a Compliance Certificate was delivered immediately preceding the date of such Restricted Payment, and shall continue to be less than 5:1 on a pro forma basis after giving effect thereto; provided, further, that leasehold interest or other contract entered into in the case ordinary course of Restricted Payments of Existing Assets, such Restricted Payment also satisfies the requirements of a Permitted Existing Asset Transferbusiness consistent with past practices. (b) Notwithstanding the foregoing, however, the Borrower or any of its Restricted Subsidiaries may declare and make Restricted Payments (i) with the amount of Capital Contributions made into the Borrower after the Effective Date; provided that (A) no Default exists immediately before and after giving effect to the making of such Restricted Payment and (B) after giving effect thereto, the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long as no Default exists immediately before and after giving effect to the making of such Restricted Payment, (A) with property (referred to as "Contributed Property") which had been previously contributed to the Borrower as a Property Contribution; provided, that such property is similar in all material respects (as determined by the Arranging Agents, including as to the Fair Market Value thereof) to the Contributed Property and the Restricted Payment under this clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market Value (determined as of the date of contribution) of such Contributed Property) available for future Restricted Payments under this clause (b)(ii) or (B) with Existing Assets so long as (x) such Restricted Payment satisfies the requirements of a Permitted Existing Asset Transfer (or, if less, the amount available to be made as a Restricted Payment pursuant to this clause (b)(ii)) and (y) such Existing Assets shall have a Fair Market Value no greater than the aggregate Fair Market Value of all Contributed Property contributed on or prior to such date (as such amount has been reduced by Restricted Payments of Contributed Property previously made pursuant to this clause (b)(ii)).