Common use of Distributions; Capital Change; Restricted Investments Clause in Contracts

Distributions; Capital Change; Restricted Investments. (a) Such Loan Party shall not directly or indirectly declare or make, or incur any liability to make, any Distribution, except, (i) Distributions among the Loan Parties; (ii) Distributions by the Borrower in the form of the Tax Dividend, provided that (x) the Lenders or the Agent have not declared any or all of the Obligations due and payable, (y) the Lenders have not terminated this Agreement or the Commitments and (z) there is sufficient Availability if the Tax Dividend is financed by the Revolving Loans; (iii) Distributions by the Borrower relating to the repayment of the Sponsor Investment (from the proceeds of Revolving Loans) in connection with a successful Requested Increase in the Revolver Credit Commitments (completed in accordance with Section 1.5); provided, however, that, (i) the Revolving Credit Commitments, pursuant to such successful Request Increase, are in an aggregate amount of not less than U.S.$100,000,000, (ii) the Permitted Bridge Facility Refinancing Date has occurred, and (iii) no Default or Event of Default exists and is continuing. (iv) Distributions in an amount equal to the Available Amount; (v) Distributions during each Fiscal Year in an aggregate amount not to exceed U.S.$2,000,000 during such Fiscal Year in order to reimburse any Parent Company for all administrative costs and expenses actually incurred by such Parent Company during such Fiscal Year, including organizational fees and expenses, legal fees and expenses and accounting fees and expenses; (vi) Distributions in connection with the payment of Sponsor Fees; (vii) Distributions in connection with the redemption or repurchase of the Capital Stock of any Loan Party held by officers, directors, consultants or employees or former officers, directors, consultants or employees of any Loan Party (or their transferees, estates or beneficiaries under their estates); provided that the aggregate cash consideration paid for all such redemptions or repurchases shall not exceed (x) U.S.$1,500,000 during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (y) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Distributions pursuant to this clause (vii); (viii) Distributions to any Parent Company not in excess of $1,500,000 in the aggregate to permit such Parent Company to pay reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering by such Parent Company to the extent that the proceeds thereof were intended to be used for the benefit of the Borrower and its Subsidiaries; (ix) The Borrower may make Distributions in the form of Capital Stock of the Borrower; and (x) Noncash repurchases of Capital Stock deemed to occur upon exercise of stock options or similar equity incentive awards if such Capital Stock represent a portion of the exercise price of, or tax liability due with respect to, such options or similar equity incentive awards; (xi) Distributions not in excess of $2,000,000 in the aggregate to allow any Parent Company to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any public entity that is a Loan Party or a Parent Company; and (b) Such Loan Party shall not make any investment, other than Permitted Investments; and (c) Such Loan Party shall not make any change in its capital structure which would reasonably be expected to have a Material Adverse Effect.

Distributions; Capital Change; Restricted Investments. Neither Parent nor any of its Subsidiaries shall (ai) Such Loan Party shall not directly or indirectly declare or make, or incur any liability to make, any 100 Distribution, except, (i) except Distributions among the Loan Parties; (ii) Distributions by to the Borrower in the form of the Tax Dividend, provided that (x) the Lenders or the Agent have not declared any or all of the Obligations due and payable, (y) the Lenders have not terminated this Agreement or the Commitments and (z) there is sufficient Availability if the Tax Dividend is financed by the Revolving Loans; (iii) Distributions by the Borrower relating to the repayment of the Sponsor Investment (from the proceeds of Revolving Loans) in connection with a successful Requested Increase in the Revolver Credit Commitments (completed in accordance with Section 1.5); provided, however, that, (i) the Revolving Credit Commitments, pursuant to such successful Request Increase, are in an aggregate amount of not less than U.S.$100,000,000its Subsidiaries, (ii) the Permitted Bridge Facility Refinancing Date has occurred, and (iii) no Default or Event of Default exists and is continuing. (iv) Distributions in an amount equal to the Available Amount; (v) Distributions during each Fiscal Year in an aggregate amount not to exceed U.S.$2,000,000 during such Fiscal Year in order to reimburse any Parent Company for all administrative costs and expenses actually incurred by such Parent Company during such Fiscal Year, including organizational fees and expenses, legal fees and expenses and accounting fees and expenses; (vi) Distributions in connection with the payment of Sponsor Fees; (vii) Distributions in connection with the redemption or repurchase of the Capital Stock of any Loan Party held by officers, directors, consultants or employees or former officers, directors, consultants or employees of any Loan Party (or their transferees, estates or beneficiaries under their estates); provided that the aggregate cash consideration paid for all such redemptions or repurchases shall not exceed (x) U.S.$1,500,000 during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (y) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Distributions pursuant to this clause (vii); (viii) Distributions to any Parent Company not in excess of $1,500,000 in the aggregate to permit such Parent Company to pay reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering by such Parent Company to the extent that the proceeds thereof were intended to be used for the benefit of the Borrower and its Subsidiaries; (ix) The Borrower may make Distributions in the form of Capital Stock of the Borrower; and (x) Noncash repurchases of Capital Stock deemed to occur upon exercise of stock options or similar equity incentive awards if such Capital Stock represent a portion of the exercise price of, or tax liability due with respect to, such options or similar equity incentive awards; (xi) Distributions not in excess of $2,000,000 in the aggregate to allow any Parent Company to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any public entity that is a Loan Party or a Parent Company; and (b) Such Loan Party shall not make any investment, other than Permitted Investments; and (c) Such Loan Party shall not make any change in its capital structure which would reasonably be expected to could have a Material Adverse Effect.Effect or (iii) make any Restricted Investment; provided, however, that notwithstanding clauses (i) and (iii) above: (A) the Borrower may (a) pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by Parent to pay, its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses of Parent (including, without limitation, any payments, fees and expenses owing by Parent pursuant to this Agreement or the transactions contemplated by this Agreement and which are paid by Parent to the Agent or a Lender, as appropriate), (b) pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by Parent to pay, franchise taxes and federal, state and local income taxes, in each instance, with respect to the operations of the Borrower and interest and penalties with respect thereto, if any, payable by Parent (provided that any refund shall be promptly returned by Parent to the Borrower and provided that dividends may be made pursuant to this clause (b) if all proceeds thereof are immediately used to repay loans made by the Borrower to Parent pursuant to this clause (b)), (c) so long as no Default or Event of Default then exists or would exist after giving effect thereto, upon the death, disability or termination of employment of any officer or employee of Parent or any of its Subsidiaries, and pursuant to the terms and conditions set forth in any subscription agreements with respect thereto, pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of purchasing or making payments in respect of, and so long as all proceeds thereof are promptly used by Parent to purchase or make payments in respect of, common stock of Parent held by such Persons, their estates or certain other related Persons, provided that (x) the total cash consideration paid after the Original Closing Date in respect of all such purchases shall not exceed $3,000,000 (with cash permitted to be paid pursuant to this clause (x) only to the extent such cash payment would be permitted pursuant to the terms of the indentures relating to each of the Senior Secured Notes (with respect to payments made while such notes were outstanding), the Senior Subordinated Notes (with respect to payments made while such notes were outstanding), the Xxxxx Senior Subordinated Notes (with respect to payments made on or after the Xxxxx/Cup Merger while such notes were outstanding) and, once issued, the Senior Replacement Notes) and (y) all other consideration paid to such Persons or their estates for such purchases shall be subordinated to the payment of all Obligations (including, without limitation, the obligations of Parent under the Parent Guaranty) and be evidenced by a subordinated promissory note in the form of Exhibit H (each, a "Stockholder Subordinated Note") and (d) so long as no Default or Event of Default then exists or would exist after giving effect thereto, pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of Parent reimbursing SF Holdings, and so long as all proceeds thereof are promptly used by Parent to reimburse SF Holdings, for out-of-pocket costs and expenses incurred by SF Holdings with respect to the stock option program provided by SF Holdings to employees of Parent and its Subsidiaries with respect to capital stock of SF Holdings (including, without limitation, any out-of-pocket costs and expenses with respect to the repurchase by SF Holdings from any 101 of such employees or its estate of any capital stock of SF Holdings issued to such employee pursuant to such stock option program), provided that the aggregate amount of such dividends, loans and advances by the Borrower to Parent in any Fiscal Year shall not exceed $1,000,000; (B) Parent and its Subsidiaries may make loans, advances and other payments to officers, employees and agents of Parent and its Subsidiaries in the ordinary course of business, including with respect to travel and relocation expenses, so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $4,500,000; (C) the Borrower may make intercompany loans to each of Lily Cup and the Global Entities, provided that (i) all such intercompany loans are evidenced by an intercompany promissory note in the form of Exhibit I payable by such Subsidiary to the Borrower, which is pledged by the Borrower as Shared Collateral pursuant to the Pledge Agreement (or if constituting Excluded Sale/Leaseback Assets, pledged by the Borrower to the Agent to secure the payment of the Obligations pursuant to a pledge agreement having terms substantially similar to those in the Pledge Agreement), (ii) the aggregate principal amount of all loans outstanding pursuant to this clause (C) shall at no time exceed $7,500,000, (iii) the aggregate principal amount of all loans outstanding pursuant to this clause (C) to Lily Cup shall at no time exceed $5,000,000 and the aggregate principal amount of all loans outstanding pursuant to this clause (C) to the Global Entities shall at no time exceed $5,000,000, and (iv) prior to making any such loan, the Borrower shall provide the Agent with evidence reasonably acceptable to the Agent that, after giving effect to such loan, Availability shall be no less than $10,000,000, with Availability being determined after giving effect to all of the Borrower's obligations being current; (D) the Borrower may hold non-cash proceeds from assets sales permitted pursuant to Section 9.9, such proceeds to be held subject to the Agent's Lien therein;

Distributions; Capital Change; Restricted Investments. Neither Parent nor any of its Subsidiaries shall (ai) Such Loan Party shall not directly or indirectly declare or make, or incur any liability to make, any Distribution, except, (i) except Distributions among the Loan Parties; (ii) Distributions by to the Borrower in the form of the Tax Dividend, provided that (x) the Lenders or the Agent have not declared any or all of the Obligations due and payable, (y) the Lenders have not terminated this Agreement or the Commitments and (z) there is sufficient Availability if the Tax Dividend is financed by the Revolving Loans; (iii) Distributions by the Borrower relating to the repayment of the Sponsor Investment (from the proceeds of Revolving Loans) in connection with a successful Requested Increase in the Revolver Credit Commitments (completed in accordance with Section 1.5); provided, however, that, (i) the Revolving Credit Commitments, pursuant to such successful Request Increase, are in an aggregate amount of not less than U.S.$100,000,000its Subsidiaries, (ii) the Permitted Bridge Facility Refinancing Date has occurred, and (iii) no Default or Event of Default exists and is continuing. (iv) Distributions in an amount equal to the Available Amount; (v) Distributions during each Fiscal Year in an aggregate amount not to exceed U.S.$2,000,000 during such Fiscal Year in order to reimburse any Parent Company for all administrative costs and expenses actually incurred by such Parent Company during such Fiscal Year, including organizational fees and expenses, legal fees and expenses and accounting fees and expenses; (vi) Distributions in connection with the payment of Sponsor Fees; (vii) Distributions in connection with the redemption or repurchase of the Capital Stock of any Loan Party held by officers, directors, consultants or employees or former officers, directors, consultants or employees of any Loan Party (or their transferees, estates or beneficiaries under their estates); provided that the aggregate cash consideration paid for all such redemptions or repurchases shall not exceed (x) U.S.$1,500,000 during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (y) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Distributions pursuant to this clause (vii); (viii) Distributions to any Parent Company not in excess of $1,500,000 in the aggregate to permit such Parent Company to pay reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering by such Parent Company to the extent that the proceeds thereof were intended to be used for the benefit of the Borrower and its Subsidiaries; (ix) The Borrower may make Distributions in the form of Capital Stock of the Borrower; and (x) Noncash repurchases of Capital Stock deemed to occur upon exercise of stock options or similar equity incentive awards if such Capital Stock represent a portion of the exercise price of, or tax liability due with respect to, such options or similar equity incentive awards; (xi) Distributions not in excess of $2,000,000 in the aggregate to allow any Parent Company to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any public entity that is a Loan Party or a Parent Company; and (b) Such Loan Party shall not make any investment, other than Permitted Investments; and (c) Such Loan Party shall not make any change in its capital structure which would reasonably be expected to could have a Material Adverse EffectEffect or (iii) make any Restricted Investment; provided, however that notwithstanding clauses (i) and (iii) above: (1) the Borrower may (a) pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by Parent to pay, its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses of Parent (including, without limitation, any payments, fees and expenses owing by Parent pursuant to this Agreement or the transactions contemplated by this Agreement and which are paid by Parent to the Agent or a Lender, as appropriate), (b) pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by Parent to pay, franchise taxes and federal, state and local income taxes, in each instance, with respect to the operations of the Borrower and interest and penalties with respect thereto, if any, payable by Parent (provided that any refund shall be promptly returned by Parent to the Borrower and provided that dividends may be made pursuant to this clause (b) if all proceeds thereof are immediately used to repay loans made by the Borrower to Parent pursuant to this clause (b)), and (c) so long as no Default or Event of Default then exists or would exist after giving effect thereto, upon the death, disability or termination of employment of any officer or employee of Parent or any of its Subsidiaries, and pursuant to the terms and conditions set forth in any subscription agreements with respect thereto, pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of purchasing or making payments in respect of, and so long as all proceeds thereof are promptly used by Parent to purchase or make payments in respect of, common stock of Parent held by such Persons, their estates or certain other related Persons, provided that (x) the total cash consideration paid after the Closing Date in respect of all such purchases shall not exceed $3,000,000 (with cash permitted to be paid pursuant to this clause (x) only to the extent such cash payment would be permitted pursuant to the terms of the indentures relating to each of the Senior Secured Notes and the Senior Subordinated Notes) and (y) all other consideration paid to such Persons or their estates for such purchases shall be subordinated to the payment of all Obligations (including, without limitation, the obligations of Parent under the Parent Guaranty) and be evidenced by a subordinated promissory note in the form of Exhibit H (each, a "Stockholder Subordinated Note"); (2) Parent and its Subsidiaries may make loans, advances and other payments to officers, employees and agents of Parent and its Subsidiaries in the ordinary course of business, including with respect to travel and relocation expenses, so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $4,500,000; (3) the Borrower may make intercompany loans to Lilly Cup, provided that (i) all such intercompany loans are evidenced by an intercompany promissory note in the form of Exhibit I payable by Lily Cup to the Borrower, which is pledged by the Borrower as Shared Collateral pursuant to the Pledge Agreement, (ii) the aggregate principal amount of all loans outstanding pursuant to this clause (C) shall at no time exceed $5,000,000, and (iii) prior to making any such loan, the Borrower shall provide the Agent with evidence reasonably acceptable to the Agent that, after giving effect to such loan, Availability shall be no less than $10,000,000, with Availability being determined after giving effect to all of the Borrower's obligations being current; (4) the Borrower may hold non-cash proceeds from assets sales permitted pursuant to Section 9.9, such proceeds to be held subject to the Agent's Lien therein; (5) Parent may own the stock of the Borrower, and the Borrower may own the stock of its Subsidiaries in existence on the Closing Date as set forth on Schedule 8.5; provided that no additional investments shall be permitted in Subsidiaries of the Borrower except as provided in clause (C) above; (6) the Borrower and its Subsidiaries may establish Wholly-Owned Subsidiaries with the prior written consent of the Agent and the Majority Lenders; (7) to the extent otherwise prohibited by this Section 9.10, the Borrower and its Subsidiaries may make investments which constitute Debt permitted pursuant to Section 9.13; (8) any Subsidiary of the Borrower may make intercompany loans to the Borrower, provided that the aggregate principal amount of all loans outstanding pursuant to this clause shall at no time exceed $5,000,000; (9) Parent may make loans to certain of its employees in aggregate principal amount not to exceed $ 5,000,000 so long as (a) such loans are used by such employees solely to purchase common stock of Parent, (b) such loans are evidenced by full recourse promissory notes executed by such employees and pledged to the Collateral Agent pursuant to the Pledge Agreement; and (c) no cash is actually remitted to any such employee as proceeds of any such loan; and (10) the Borrower and Parent may effect transactions related to assets other than Credit Agreement Collateral in accordance with the terms of the Asset Transfer Documents as in effect on the date hereof. All loans and advances made by the Borrower to Parent (pursuant to this Section 9.10 or otherwise) shall be evidenced by an intercompany note payable from Parent to the Borrower and pledged as Shared Collateral pursuant to the Pledge Agreement.

Distributions; Capital Change; Restricted Investments. Neither Parent nor any of its Subsidiaries shall (ai) Such Loan Party shall not directly or indirectly declare or make, or incur any liability to make, any Distribution, except, (i) except Distributions among the Loan Parties; (ii) Distributions by to the Borrower in the form of the Tax Dividend, provided that (x) the Lenders or the Agent have not declared any or all of the Obligations due and payable, (y) the Lenders have not terminated this Agreement or the Commitments and (z) there is sufficient Availability if the Tax Dividend is financed by the Revolving Loans; (iii) Distributions by the Borrower relating to the repayment of the Sponsor Investment (from the proceeds of Revolving Loans) in connection with a successful Requested Increase in the Revolver Credit Commitments (completed in accordance with Section 1.5); provided, however, that, (i) the Revolving Credit Commitments, pursuant to such successful Request Increase, are in an aggregate amount of not less than U.S.$100,000,000its Subsidiaries, (ii) the Permitted Bridge Facility Refinancing Date has occurred, and (iii) no Default or Event of Default exists and is continuing. (iv) Distributions in an amount equal to the Available Amount; (v) Distributions during each Fiscal Year in an aggregate amount not to exceed U.S.$2,000,000 during such Fiscal Year in order to reimburse any Parent Company for all administrative costs and expenses actually incurred by such Parent Company during such Fiscal Year, including organizational fees and expenses, legal fees and expenses and accounting fees and expenses; (vi) Distributions in connection with the payment of Sponsor Fees; (vii) Distributions in connection with the redemption or repurchase of the Capital Stock of any Loan Party held by officers, directors, consultants or employees or former officers, directors, consultants or employees of any Loan Party (or their transferees, estates or beneficiaries under their estates); provided that the aggregate cash consideration paid for all such redemptions or repurchases shall not exceed (x) U.S.$1,500,000 during any calendar year (with unused amounts being available to be used in the following calendar year, but not in any succeeding calendar year) plus (y) the net cash proceeds of any “key-man” life insurance policies that have not been applied to the payment of Distributions pursuant to this clause (vii); (viii) Distributions to any Parent Company not in excess of $1,500,000 in the aggregate to permit such Parent Company to pay reasonable fees and expenses incurred in connection with any unsuccessful debt or equity offering by such Parent Company to the extent that the proceeds thereof were intended to be used for the benefit of the Borrower and its Subsidiaries; (ix) The Borrower may make Distributions in the form of Capital Stock of the Borrower; and (x) Noncash repurchases of Capital Stock deemed to occur upon exercise of stock options or similar equity incentive awards if such Capital Stock represent a portion of the exercise price of, or tax liability due with respect to, such options or similar equity incentive awards; (xi) Distributions not in excess of $2,000,000 in the aggregate to allow any Parent Company to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Capital Stock of any public entity that is a Loan Party or a Parent Company; and (b) Such Loan Party shall not make any investment, other than Permitted Investments; and (c) Such Loan Party shall not make any change in its capital structure which would reasonably be expected to could have a Material Adverse Effect.Effect or (iii) make any Restricted Investment; provided, however that notwithstanding clauses (i) and (iii) above: (A) the Borrower may (a) pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by Parent to pay, its operating expenses incurred in the ordinary course of business and other corporate overhead costs and expenses of Parent (including, without limitation, any payments, fees and expenses owing by Parent pursuant to this Agreement or the transactions contemplated by this Agreement and which are paid by Parent to the Agent or a Lender, as appropriate), (b) pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of paying, and so long as all proceeds thereof are promptly used by Parent to pay, franchise taxes and federal, state and local income taxes, in each instance, with respect to the operations of the Borrower and interest and penalties with respect thereto, if any, payable by Parent (provided that any refund shall be promptly returned by Parent to the Borrower and provided that dividends may be made pursuant to this clause (b) if all proceeds thereof are immediately used to repay loans made by the Borrower to Parent pursuant to this clause (b)), (c) so long as no Default or Event of Default then exists or would exist after giving effect thereto, upon the death, disability or termination of employment of any officer or employee of Parent or any of its Subsidiaries, and pursuant to the terms and conditions set forth in any subscription agreements with respect thereto, pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of purchasing or making payments in respect of, and so long as all proceeds thereof are promptly used by Parent to purchase or make payments in respect of, common stock of Parent held by such Persons, their estates or certain other related Persons, provided that (x) the total cash consideration paid after the Original Closing Date in respect of all such purchases shall not exceed $3,000,000 (with cash permitted to be paid pursuant to this clause (x) only to the extent such cash payment would be permitted pursuant to the terms of the indentures relating to each of the Senior 108 Secured Notes (with respect to payments made while such notes were outstanding) and the Senior Subordinated Notes) and (y) all other consideration paid to such Persons or their estates for such purchases shall be subordinated to the payment of all Obligations (including, without limitation, the obligations of Parent under the Parent Guaranty) and be evidenced by a subordinated promissory note in the form of Exhibit H (each, a "Stockholder Subordinated Note") and (d) so long as no Default or Event of Default then exists or would exist after giving effect thereto, pay cash dividends and make loans and advances to Parent, in each instance, for the purpose of Parent reimbursing Buyer, and so long as all proceeds thereof are promptly used by Parent to reimburse Buyer, for out-of-pocket costs and expenses incurred by Buyer with respect to the stock option program provided by Buyer to employees of Parent and its Subsidiaries with respect to capital stock of Buyer (including, without limitation, any out-of-pocket costs and expenses with respect to the repurchase by Buyer from any of such employees or its estate of any capital stock of Buyer issued to such employee pursuant to such stock option program), provided that the aggregate amount of such dividends, loans and advances by the Borrower to Parent in any Fiscal Year shall not exceed $1,000,000; (B) Parent and its Subsidiaries may make loans, advances and other payments to officers, employees and agents of Parent and its Subsidiaries in the ordinary course of business, including with respect to travel and relocation expenses, so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $4,500,000; (C) the Borrower may make intercompany loans to Lilly Cup, provided that (i) all such intercompany loans are evidenced by an intercompany promissory note in the form of Exhibit I payable by Lily Cup to the Borrower, which is pledged by the Borrower as Shared Collateral pursuant to the Pledge Agreement (or if constituting Excluded Sale/Leaseback Assets, pledged by the Borrower to the Agent to secure the payment of the Obligations pursuant to a pledge agreement having terms substantially similar to those in the Pledge Agreement), (ii) the aggregate principal amount of all loans outstanding pursuant to this clause (C) shall at no time exceed $5,000,000, and (iii) prior to making any such loan, the Borrower shall provide the Agent with evidence reasonably acceptable to the Agent that, after giving effect to such loan, Availability shall be no less than $10,000,000, with Availability being determined after giving effect to all of the Borrower's obligations being current; (D) the Borrower may hold non-cash proceeds from assets sales permitted pursuant to Section 9.9, such proceeds to be held subject to the Agent's Lien therein;