Loans, Investments, Etc. Each Borrower and Guarantor shall not, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except: (a) the endorsement of instruments for collection or deposit in the ordinary course of business; (b) investments in cash or Cash Equivalents, provided, that, (i) if a Cash Dominion Period exists, no Loans are then outstanding, except that notwithstanding that any Loans are outstanding if a Cash Dominion Period exists, (A) Borrowers and Guarantors may from time to time in the ordinary course of business consistent with their current practices as of the date hereof make deposits of cash in bank accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than three (3) Business Days from the date of the initial deposit thereof) and (B) Borrowers and Guarantors may have cash at retail store locations and in Store Accounts to the extent permitted in Section 6.3(a) hereof and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held; (c) the equity investments made by each Borrower and Guarantor prior to the date hereof in any of its Subsidiaries which are not Borrowers or Guarantors; (d) loans and advances by any Borrower or Guarantor to employees of such Borrower or Guarantor not to exceed the principal amount of $5,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employee in connection with their work for such Borrower or Guarantor and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees); (e) stock or obligations issued to any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; (f) obligations of account debtors to any Borrower or Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or Guarantor, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereof; (g) loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that, (i) as to all of such loans, the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and (ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Event of Default has occurred and is continuing, such Borrower may pay, and such Guarantor may receive, payments of principal and interest in respect of such Indebtedness); (h) any Permitted Acquisition; provided, that, in no event shall any assets acquired pursuant to any Permitted Acquisition be deemed to be Eligible Accounts, Eligible Equipment, Eligible Real Property, Eligible Credit Card Receivables or Eligible Inventory unless the following conditions shall be satisfied as determined by Agent: (1) Agent shall have received an appraisal of the Inventory of the Acquired Business and such other assets of the Acquired Business as Agent may specify, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business); (i) equity investments by each Borrower and Guarantor in another Borrower or Guarantor; (j) loans and other investments by a Borrower or Guarantor to a Person that is neither an HPT Company or an Affiliate of a Borrower or Guarantor; provided, that, (i) as of the date of such loan or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) such loans and investments are not made in connection with a Permitted Acquisition, and (iii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; (k) loans and other investments by a Borrower or Guarantor to Excluded Subsidiaries; provided, that, (i) as of the date of such loan or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (iv) the aggregate amount of all such loans and investments in Excluded Subsidiaries shall not exceed $5,000,000; (l) the formation of any Subsidiary; provided, that, if any Subsidiary is formed for the purpose of making, or in anticipation of consummating, a Permitted Acquisition, Agent shall have received all items required by Sections 5.2 and 9.21 hereof with respect to such Subsidiary (subject to the terms of Section 9.21(d) hereof); and (m) the loans and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 above; provided , that, as to such loans and advances, Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unless, as of the date of any such loan, advance, investment, purchase or repurchase, no Default of Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to thirty-five (35%) percent of the Maximum Credit.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Loans, Investments, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any personperson (which shall not be deemed to include Accounts arising from the sale of goods and services in the ordinary course of business), or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) Permitted Acquisitions;
(c) investments in cash or Cash Equivalents, ; provided, that, with respect to investments in Cash Equivalents by any Borrower, (i) if a Cash Dominion Period exists, no Loans are then outstanding, except that notwithstanding that any Loans are outstanding if a Cash Dominion Period existsoutstanding, (A) Borrowers and Guarantors any Borrower may from time to time in the ordinary course of business consistent with their current practices as of the date hereof (A) make deposits of cash or other immediately available funds in bank operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are but not held more than three one (31) Business Days from after the date of the initial deposit thereof) and therein), (B) Borrowers cause amounts to be deposited in the Blocked Accounts in accordance with the terms of Section 6.3 hereof and Guarantors may have cash at retail store locations (C) make deposits in those deposit accounts having balances of less than $50,000 up to an aggregate amount for all such accounts of $250,000 (and in Store Accounts to the extent permitted case of the deposit account number 00000000 at Community First Bank having a balance of not more than $100,000 for more than five (5) consecutive days) as described in Section 6.3(a5.2(d) hereof hereof, and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are heldheld to the extent required thereunder;
(cd) the existing equity investments made by of each Borrower and Guarantor prior to the Subsidiaries of Borrower as of the date hereof in its Subsidiaries; provided, that, no Borrower shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of its Subsidiaries which are not Borrowers or Guarantorssuch Subsidiaries;
(de) loans and advances by any Borrower or Guarantor any of its Subsidiaries to employees of such Borrower or Guarantor such Subsidiary not to exceed the principal amount of $5,000,000 1,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employee employees in connection with their work for such Borrower or Guarantor such Subsidiary and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(ef) stock or obligations issued to any Borrower or Guarantor any other Person liable in respect of the Obligations by any Person (or the representative of such Person) in respect of Indebtedness indebtedness of such Person owing to such any Borrower or Guarantor such obligor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such PersonPerson or in connection with the settlement of disputes or trade payables; provided, that, to the extent that the original of any such stock or instrument evidencing such obligations (if any) is issued or payable to such Borrower or any other Person liable in respect of the Obligations, it shall be promptly delivered to Agent, upon Agent’s request, together with such stock power, assignment or endorsement by such Borrower or such other Person as Agent may request;
(fg) obligations of account debtors to any Borrower or Guarantor any of its Subsidiaries arising from Accounts which are past due whether or not evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantorsuch Subsidiary; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or Guarantorany Person liable in respect of the Obligations, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor such Person and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereofendorsed;
(gh) loans from time to time by Xxxxxx UK to a Borrower; provided, that, (i) the Indebtedness of such Borrower to Xxxxxx UK arising pursuant to such loans shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (ii) the terms and conditions of such Indebtedness are set forth in the Memorandum of Agreement between Xxxxxx UK and such Borrower dated as of April 2, 2004 as in effect on the date hereof, (iii) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by Xxxxxx UK and such Borrower, (iv) promptly upon Agent’s request, Agent shall have received a promissory note in form and substance satisfactory to Agent evidencing the terms and conditions of such Indebtedness, and (v) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement, except (A) for payments of regularly scheduled interest in respect thereof at the rate set forth in the Memorandum of Agreement referred to above as in effect on the date hereof and (B) for payments of principal in respect of the Indebtedness arising pursuant to such loans, provided, that, as to any such payment, each of the following conditions is satisfied: (1) Agent shall have received not less than two (2) Business Days’ prior written notice with respect to any such payment, (2) as of the date of any such payment and after giving effect thereto, Excess Availability for each of the immediately preceding ten (10) consecutive days shall have been not less than $5,000,000 and as of the date of any such payment and after giving effect thereto, Excess Availability shall be not less than $5,000,000 and (3) as of the date of any such payment and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(i) loans or advances of money or property by any Foreign Subsidiary to any person (including to any Borrower or Guarantor any of its Subsidiaries) after the date hereof (except for loans or advances by Xxxxxx UK which shall be subject to another Borrower clause (h) above), or Guarantor the investment by any such Subsidiary in any person (by capital contribution, dividend or otherwise) or in any Cash Equivalents or similar instruments in any foreign jurisdiction after the date hereof, or the purchase or repurchase by any such Subsidiary of the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person after the date hereof, or the formation or acquisition by any such Subsidiary of any Subsidiaries after the date hereof or the agreement of any such Subsidiary to do any of the foregoing after the date hereof; provided, that,
, (i) as of the date of such loan or advance (other than any loan or advance to any Borrower), or investment or purchase or repurchase (other than investments in cash or Cash Equivalents or similar instruments in any foreign jurisdiction), or the formation or acquisition of any such Subsidiary and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, (ii) in no event shall any Borrower make, or be required to make, any payment or incur any obligation or liability (contingent or otherwise) in connection with any such loan or advance, or investment or purchase or repurchase, or the formation or acquisition of such Subsidiary or take any other action otherwise prohibited hereunder, and (iii) in the case of any loans or advances to any Borrower, (A) the Indebtedness arising pursuant to such loans shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and condition acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the terms of the subordination in right of payment of such loansIndebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Subsidiary and Borrower, and (C) Borrowers shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness;
(j) loans by Xxxxxx Parent to Xxxxxx Wire from time to time, provided, that, (i) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and
and (ii) except as Agent may from time to loans by a Guarantor to a Borrowertime otherwise agree, (A) as of the date of any such loan, or the repayment of any Indebtedness arising pursuant to such loan shall be subject toloan, and subordinate in right of payment toeach case after giving effect thereto, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Default or Event of Default has shall exist or have occurred and is be continuing, such Borrower may pay, and such Guarantor may receive, payments of principal and interest in respect of such Indebtedness);
(h) any Permitted Acquisition; provided, that, in no event shall any assets acquired pursuant to any Permitted Acquisition be deemed to be Eligible Accounts, Eligible Equipment, Eligible Real Property, Eligible Credit Card Receivables or Eligible Inventory unless the following conditions shall be satisfied as determined by Agent: (1) Agent shall have received an appraisal of the Inventory of the Acquired Business and such other assets of the Acquired Business as Agent may specify, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business);
(i) equity investments by each Borrower and Guarantor in another Borrower or Guarantor;
(jk) loans and other investments by a Borrower or Guarantor Xxxxxx Parent to a Person that is neither an HPT Company or an Affiliate Xxxxxx International (China) Ltd. (“Xxxxxx China”) for the purpose of a Borrower or Guarantor; increasing its registered capital, provided, that, (i) as an amount equivalent to the amount of any such loan shall be promptly paid to Xxxxxx Parent in the form of a dividend from Xxxxxx China, (ii) the Excess Availability for each of the thirty (30) consecutive days immediately preceding the date of such loan or investment and after giving effect theretoshall be greater than $25,000,000, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) such loans and investments are not made in connection with a Permitted Acquisition, and (iii) as of the date of such loan or investment and for each of the thirty (30) consecutive days immediately following the date of such loan, Excess Availability shall be greater than $25,000,000 (it being agreed that, if a loan is made pursuant to the terms of this clause (k) and the Excess Availability shall fail to be greater than $25,000,000 for any of the thirty (30) consecutive days immediately following the date of such loan, then such failure shall, automatically and without the necessity of any further action, constitute an Event of Default), (iv) the aggregate amount of such loans shall not exceed $5,000,000 during the term of this Agreement, and (vii) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(k) loans and other investments by a Borrower or Guarantor to Excluded Subsidiaries; provided, that, (i) as of the date of such loan or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (iv) the aggregate amount of all such loans and investments in Excluded Subsidiaries shall not exceed $5,000,000;and
(l) the formation of any Subsidiary; providedinvestments, that, if any Subsidiary is formed for the purpose of making, or in anticipation of consummating, a Permitted Acquisition, Agent shall have received all items required by Sections 5.2 and 9.21 hereof with respect to such Subsidiary (subject to the terms of Section 9.21(d) hereof); and
(m) the loans and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 aboveCertificate; provided provided, that, as to such loans and advances, Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything thereto and Borrowers shall furnish to Agent all notices or demands in connection with such loans and advances either received by Borrowers or on its behalf, promptly after the contrary contained in this Agreementreceipt thereof, no or sent by any Borrower or Guarantor (other than a Petro Company) shallon its behalf, prior to concurrently with the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unlesssending thereof, as of the date of any such loan, advance, investment, purchase or repurchase, no Default of Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to thirty-five (35%) percent of the Maximum Creditcase may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Loans, Investments, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree enter into a binding agreement to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) Intentionally Deleted;
(c) investments in cash or Cash Equivalents, ; provided, that, (i) if a Cash Dominion Period existsat any time an Event of Default shall be continuing, no Loans are then outstanding, except that notwithstanding that any Loans are outstanding if a Cash Dominion Period exists, (A) Borrowers Parent and Guarantors its Subsidiaries may from time to time in the ordinary course of business consistent with their current practices as of the date hereof make deposits of cash or other immediately available funds in bank operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than three (3) Business Days from the date of the initial deposit thereof) and (B) Borrowers and Guarantors may have cash at retail store locations and in Store Accounts to the extent permitted in Section 6.3(a) hereof and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(cd) the existing equity investments made by of each Borrower and Guarantor prior to as of the date hereof in any of its Subsidiaries which are not Borrowers or Guarantors;
(d) loans and advances by any Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to employees make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Borrower or Guarantor not to exceed the principal amount of $5,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employee in connection with their work for such Borrower or Guarantor and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees)Subsidiaries;
(e) Intentionally Deleted;
(f) stock or obligations issued to any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to Agent, upon Agent’s (acting at the direction of the Required Lenders) request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Agent (acting at the direction of the Required Lenders) may request;
(fg) obligations of account debtors to any Borrower or Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or Guarantor, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereof;
(g) loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of such loans, the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Event of Default has occurred and is continuing, such Borrower may pay, and such Guarantor may receive, payments of principal and interest in respect of such Indebtedness)endorsed;
(h) any Permitted Acquisition; providedloans, that, in no event shall any assets acquired pursuant to any Permitted Acquisition be deemed to be Eligible Accounts, Eligible Equipment, Eligible Real Property, Eligible Credit Card Receivables advances or Eligible Inventory unless the following conditions shall be satisfied as determined by Agent: (1) Agent shall have received an appraisal of the Inventory of the Acquired Business and such other assets of the Acquired Business as Agent may specify, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business);
(i) equity investments by each Borrower and Guarantor in another Borrower or Guarantor;
(j) loans and other investments by a Borrower or Guarantor to a Person that is neither an HPT Company or an Affiliate of in a Borrower or Guarantor, or by a Subsidiary that is not a Borrower or Guarantor in any other Subsidiary that is not a Borrower or Guarantor, after the date hereof; provided, that, as to any such loans, advances or other investments, each of the following conditions is satisfied: (i1) such Indebtedness is permitted hereunder, and (2) as of the date of any such loan loan, advance or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) such loans and investments are not made in connection with a Permitted Acquisition, and (iii) as of the date of such loan or other investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(ki) loans and loans, advances or other investments by a any Borrower or Guarantor to Excluded Subsidiariesany Subsidiary that is not a Borrower or Guarantor; provided, that, as to any such loans or advances, each of the following conditions is satisfied: (i1) the principal amount of all such loans, advances and other investments outstanding at anytime shall not exceed $10,000,000 in the aggregate during the term of this Agreement, (2) as of the date of any such loan loan, advance or other investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall be not be less than the an amount equal to thirty-five (35%) percent 15% of the Maximum CreditCredit then in effect, (ii3) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (iv) the aggregate amount of all such loans and investments in Excluded Subsidiaries shall not exceed $5,000,000;
(l) the formation of any Subsidiary; provided, that, if any Subsidiary is formed for the purpose of making, or in anticipation of consummating, a Permitted Acquisition, Agent shall have received all items required by Sections 5.2 and 9.21 hereof with respect to such Subsidiary (subject to the terms of Section 9.21(d) hereof); and
(m) the loans and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 above; provided , that, as to such loans and advances, Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unless, as of the date of any such loan, advance, investment, purchase advance or repurchaseother investment and after giving effect thereto, no Default of Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash (4) to the extent that any such Subsidiary is a Foreign Subsidiary and the Agent does not have the requisite pledge of the Capital Stock of such Foreign Subsidiary to the extent required hereunder, the principal amount of all such outstanding loans, advances and other investments in all such unpledged Foreign Subsidiaries shall not be exceed $3,000,000 in the aggregate during the term of this Agreement;
(j) the loans and advances set forth on Schedule 9.10;
(k) the formation of Controlling Parent (other than Toolrock Investment, LLC) in connection with the consummation of a Qualified Public Offering so long as each of the following conditions is satisfied: (i) Agent shall have received not less than an amount equal to thirty-five ten (35%10) percent Business Days prior written notice of such formation, (ii) such Controlling Parent shall have no operating assets and (iii) as of the Maximum Creditdate of any such formation and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(l) all Capital Expenditures permitted under Section 9.18 hereof; and
(m) investments not otherwise permitted herein; provided, that, (i) the aggregate outstanding amount of all such investments shall not exceed $2,000,000 at any time and (ii) as of the date of any such investment and after giving effect thereto, no Event of Default shall have occurred and be continuing.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Loans, Investments, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree enter into a binding agreement to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) Permitted Acquisitions;
(c) investments in cash or Cash Equivalents, ; provided, that, (i) if at any time on and after a Cash Dominion Period existsEvent and for so long as the same is continuing, no Loans are then outstanding, ; except that notwithstanding that any Loans are outstanding if at any time a Cash Dominion Period Event exists, (A) Borrowers Parent and Guarantors its Subsidiaries may from time to time in the ordinary course of business consistent with their current practices as of the date hereof make deposits of cash or other immediately available funds in bank operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than three (3) Business Days from the date of the initial deposit thereof) and (B) Borrowers and Guarantors may have cash at retail store locations and in Store Accounts to the extent permitted in Section 6.3(a) hereof and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(cd) the existing equity investments made by of each Borrower and Guarantor prior to as of the date hereof in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of its Subsidiaries which are not Borrowers or Guarantorssuch Subsidiaries;
(de) loans and advances by any Borrower or Guarantor to employees of such Borrower or Guarantor not to exceed the principal amount of $5,000,000 1,000,000 in the aggregate at any time outstanding for: (i) reasonably reasonable and necessary bona fide work-related travel or other ordinary business expenses to be incurred by such employee employees in connection with their work for such Borrower or Guarantor and (ii) reasonable and necessary bona fide relocation expenses of such employees (including home mortgage financing for relocated employees);
(ef) stock or obligations issued to any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to Agent, upon Agent’s request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Agent may request;
(fg) obligations of account debtors to any Borrower or Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or Guarantor, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereof;
(g) loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of such loans, the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Event of Default has occurred and is continuing, such Borrower may pay, and such Guarantor may receive, payments of principal and interest in respect of such Indebtedness);
(h) any Permitted Acquisition; provided, that, in no event shall any assets acquired pursuant to any Permitted Acquisition be deemed to be Eligible Accounts, Eligible Equipment, Eligible Real Property, Eligible Credit Card Receivables or Eligible Inventory unless the following conditions shall be satisfied as determined by Agent: (1) Agent shall have received an appraisal of the Inventory of the Acquired Business and such other assets of the Acquired Business as Agent may specify, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business)endorsed;
(i) equity investments by each Borrower and Guarantor in another Borrower loans, advances or Guarantor;
(j) loans and other investments by a Borrower or Guarantor to or in a Person Borrower or Guarantor, or by a Subsidiary that is neither an HPT Company not a Borrower or an Affiliate Guarantor in any other Subsidiary that is not a Borrower or Guarantor, after the date hereof; provided, that, as to any such loans, advances or other investments, each of the following conditions is satisfied: (1) such Indebtedness is permitted hereunder, and (2) as of the date of any such loan, advance or other investment and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(h) loans, advances or other investments by any Borrower or Guarantor to any Subsidiary that is not a Borrower or Guarantor; provided, that, as to any such loans or advances, each of the following conditions is satisfied: (i1) the principal amount of all such loans, advances and other investments shall not exceed $3,000,000 in the aggregate in any fiscal year, (2) as of the date of any such loan loan, advance or other investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall be not be less than the an amount equal to thirty-five (35%) percent 15% of the Maximum CreditCredit then in effect, and (3) as of the date of any such loan, advance or other investment and after giving effect thereto, no Event of Default shall have occurred and be continuing;
(i) the loans and advances set forth on Schedule 9.10 to the Information Certificate;
(j) the formation of Controlling Parent (other than Toolrock Investment, LLC) in connection with the consummation of a Qualified Public Offering so long as each of the following conditions is satisfied: (i) Agent shall have received not less than ten (10) Business Days prior written notice of such formation, (ii) such loans and investments are not made in connection with a Permitted Acquisition, Controlling Parent shall have no operating assets and (iii) as of the date of any such loan or investment formation and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(k) loans and other all Capital Expenditures permitted under Section 9.18 hereof; and
(l) investments by a Borrower or Guarantor to Excluded Subsidiariesnot otherwise permitted herein; provided, that, (i) as the aggregate outstanding amount of the date of all such loan or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash investments shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, exceed $2,000,000 at any time and (ii) as of the date of any such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (iv) the aggregate amount of all such loans and investments in Excluded Subsidiaries shall not exceed $5,000,000;
(l) the formation of any Subsidiary; provided, that, if any Subsidiary is formed for the purpose of making, or in anticipation of consummating, a Permitted Acquisition, Agent shall have received all items required by Sections 5.2 and 9.21 hereof with respect to such Subsidiary (subject to the terms of Section 9.21(d) hereof); and
(m) the loans and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 above; provided , that, as to such loans and advances, Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unless, as of the date of any such loan, advance, investment, purchase or repurchase, no Default of Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Loans, Investments, Etc. Each No Borrower and Guarantor shall, or shall notpermit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any personPerson, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock any Equity Interests or Indebtedness or all or a substantial part of the assets or property of any personPerson, or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (unless conditioned upon the consent of the Required Lenders), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, (i) if a Cash Dominion Period exists, no Loans are then outstanding, except provided that notwithstanding that at any Loans are outstanding if a Cash Dominion Period exists, (A) Borrowers and Guarantors may from time to time such investments in the ordinary course of business consistent with their current practices as of the date hereof make deposits of cash in bank accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn aggregate exceed Ten Thousand Dollars (so long as such funds and Cash Equivalents are not held more than three $10,000)
(31) Business Days from the date of the initial deposit thereof) no Revolver Loan Debt is then outstanding and (B) Borrowers and Guarantors may have cash at retail store locations and in Store Accounts to the extent permitted in Section 6.3(a) hereof and (ii2) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(c) the existing equity investments made by of each Borrower and Guarantor prior as of the Signing Date in its Subsidiaries, as listed on Schedule 7.4; provided, however, that, no Borrower shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the date hereof in benefit of any of its Subsidiaries which are not Borrowers or Guarantorssuch Subsidiaries, except that a Borrower may make capital contributions to another Borrower in the form of dividend payments as permitted pursuant to Sections 7.5 and 7.7 hereof;
(d) equity investments of a Borrower in another Borrower;
(e) loans and advances by any Borrower or Guarantor to employees of such Borrower or Guarantor after the Signing Date in an aggregate principal amount not to exceed the principal amount of $5,000,000 in the aggregate Materiality Threshold at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employee in connection with their work for such Borrower or Guarantor and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees)time;
(e) stock or obligations issued to any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person;
(f) obligations of account debtors to any Borrower or Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or Guarantor, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereof;
(g) loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of such loans, the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Event of Default has occurred and is continuing, such Borrower may pay, and such Guarantor may receive, payments of principal and interest in respect of such Indebtedness);
(h) any Permitted Acquisition; provided, that, in no event shall any assets acquired pursuant to any Permitted Acquisition be deemed to be Eligible Accounts, Eligible Equipment, Eligible Real Property, Eligible Credit Card Receivables or Eligible Inventory unless the following conditions shall be satisfied as determined by Agent: (1) Agent shall have received an appraisal of the Inventory of the Acquired Business and such other assets of the Acquired Business as Agent may specify, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business);
(i) equity investments by each Borrower and Guarantor in another Borrower or Guarantor;
(j) loans and other investments by a Borrower or Guarantor to a Person that is neither an HPT Company or an Affiliate of a Borrower or Guarantor; provided, that, (i) as of the date of such loan or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) such loans and investments are not made in connection with a Permitted Acquisition, and (iii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(k) loans and other investments by a Borrower or Guarantor to Excluded Subsidiaries; provided, that, (i) as of the date of such loan or investment and after giving effect thereto, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (iv) the aggregate amount of all such loans and investments in Excluded Subsidiaries shall not exceed $5,000,000;
(l) the formation of any Subsidiary; provided, that, if any Subsidiary is formed for the purpose of making, or in anticipation of consummating, a Permitted Acquisition, Agent shall have received all items required by Sections 5.2 and 9.21 hereof with respect to such Subsidiary (subject to the terms of Section 9.21(d) hereof); and
(m) the loans and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 above; provided , that, as to such loans and advances, Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unless, as of the date of any such loan, advance, investment, purchase or repurchase, no Default of Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to thirty-five (35%) percent of the Maximum Credit.
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Loans, Investments, Etc. Each Borrower and Guarantor Guarantors shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, (i) if a Cash Dominion Period exists, no Loans are then outstanding, except that notwithstanding that any Loans are outstanding if a Cash Dominion Period existsoutstanding, (A) Borrowers and Guarantors Borrower may from time to time in the ordinary course of business consistent with their current practices as of the date hereof make deposits of cash or other immediately available funds in bank operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than three five (35) Business Days from the date of the initial deposit thereofthereof and do not exceed $2,500,000, except that, during the thirty (30) days prior to any scheduled interest payment date under the Senior Note Indenture (as in effect on the date hereof), Borrower may make such deposits and such funds may be held in Cash Equivalents so long as such funds and Cash Equivalents are not held more than thirty (B30) Borrowers days and Guarantors may have cash at retail store locations and in Store Accounts to the extent permitted in Section 6.3(ado not exceed $10,000,000) hereof and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(c) the existing equity investments made by each of Borrower and Guarantor prior to as of the date hereof in its Subsidiaries, and so long as no Default or Event of Default has occurred and is continuing or would result therefrom, additional investments by Borrower or any of its Subsidiaries which are Guarantor not Borrowers or Guarantors;otherwise permitted under this Section in any Guarantor,
(d) loans and advances by any Borrower or any Guarantor to employees of such Borrower or any Guarantor in the ordinary course of business: (i) not to exceed the principal amount of $2,000,000 in the aggregate at any time outstanding with respect to employees who are not senior executives of Borrower, (ii) not to exceed the principal amount of $4,000,000 in the aggregate at any time outstanding with respect to employees who are senior executives of Borrower, and (iii) not to exceed the principal amount of $5,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employee in connection with their work for such Borrower or Guarantor and (ii) reasonable and necessary relocation expenses the acquisition by employees of such employees (including home mortgage financing for relocated employees)Capital Stock of Borrower;
(e) stock or obligations issued to any Borrower or any Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or any Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, subject to the terms of the Term Loan Intercreditor Agreement, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to Agent (or Term Loan Agent, as applicable), upon Agent’s (or Term Loan Agent’s) request, together with such stock power, assignment or endorsement by Borrower or such Guarantor as Agent (or Term Loan Agent) may request;
(f) obligations of account debtors to any loans by Borrower or any Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or Guarantor, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereof;
(g) loans by a Borrower or Guarantor to another Borrower or Guarantor other after the date hereof, provided, that,
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Agent a report in form and substance satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (B) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent (or Term Loan Agent, as applicable) upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent (or Term Loan Agent, as applicable) may require, andsubject to the terms of the Term Loan Intercreditor Agreement, and (C) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) as to loans by a any Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Event of Default has occurred and is continuing, such Borrower may payBorrower, and such Guarantor may receive(C) Borrower shall not, directly or indirectly make, or be required to make, any payments of principal and interest in respect of such Indebtedness);Indebtedness prior to the end of the then current term of this Agreement, and
(hiii) as to loans by Borrower to any Permitted AcquisitionGuarantor, other than loans to a Guarantor made for the purpose of acquiring a Subsidiary in accordance with Section 9.10(g) below, as of the date of any such loan and after giving effect thereto, (A) the Excess Availability of Borrower shall be not less than $5,000,000, and (B) the aggregate principal amount of all such loans outstanding at any time shall not exceed $10,000,000, and
(g) loans of money or property (other than Collateral) after the date hereof by Borrower or any Guarantor to any Person (other than to Borrower or another Guarantor) or investments after the date hereof by Borrower or any Guarantor by capital contribution in any Person not otherwise permitted pursuant to this Section 9.10; provided, that, in no event shall any assets acquired pursuant as to any Permitted Acquisition be deemed to be Eligible Accountssuch loans or investments, Eligible Equipment, Eligible Real Property, Eligible Credit Card Receivables or Eligible Inventory unless each of the following conditions shall be is satisfied or waived as determined determined, in good faith, by Agent: (1) Agent shall have received an appraisal of the Inventory of the Acquired Business and such other assets of the Acquired Business as Agent may specify, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business);:
(i) equity investments by each Borrower and Guarantor in another Borrower or Guarantor;
(j) loans and other investments by a Borrower or Guarantor to a Person that is neither an HPT Company or an Affiliate of a Borrower or Guarantor; provided, that, (i) as of the date of any such loan or investment and after giving effect theretoinvestment, Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) such loans and investments are not made in connection with a Permitted Acquisition, and (iii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(kii) the aggregate outstanding amount of all such loans and investments shall not exceed $10,000,000 at any time;
(iii) in the case of an investment by capital contribution, at the option of Agent (or Term Loan Agent, as applicable) and subject to the terms of the Term Loan Intercreditor Agreement, the original stock certificate or other investments by instrument evidencing such capital contribution (or such other evidence as may be issued in the case of a limited liability company) shall be promptly delivered to Agent (or Term Loan Agent, as applicable), together with such stock power, assignment or endorsement as Agent (or Term Loan Agent, as applicable) may request, and promptly upon Agent’s reasonable request, Borrower or such Guarantor making such investment shall execute and deliver to Excluded SubsidiariesAgent, in form and substance reasonably satisfactory to Agent, a pledge and security agreement (in form and substance substantially similar to the same type of agreement executed by Borrower in favor of Agent on or prior to the date hereof), granting to Agent a pledge of, security interest in and lien upon all of the issued and outstanding shares of such stock or other instrument or interest (and in the case of a limited liability company take such other actions as Agent shall reasonably require with respect to Agent’s security interests therein);
(iv) in the case of loans of money or property, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans shall be delivered, or caused to be delivered, to Agent (or Term Loan Agent, as applicable), at its option and subject to the terms of the Term Loan Intercreditor Agreement, together with an appropriate endorsement, in form and substance reasonably satisfactory to Agent (or Term Loan Agent, as applicable);
(v) Agent shall have received (A) prompt written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all material agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Agent may reasonably request; and
(vi) the requirements (other than the dollar limitations) of any applicable clause of this Section shall apply to such additional investment;
(h) the formation or acquisition by Borrower or any Guarantor after the date hereof of any direct wholly-owned Subsidiary of Borrower or any Guarantor organized under the laws of a jurisdiction in the United States of America or the purchase by Borrower or any Guarantor of all or a substantial part of the assets or properties (other than Capital Stock) of any third Person organized under the laws of a jurisdiction in the United States of America; provided, that, as to the formation or acquisition of any such Subsidiary, or the purchase of the assets of any such third Person, each of the following conditions is satisfied or waived as determined, in good faith, by Agent:
(i) as of the date of the formation or acquisition of such loan Subsidiary or investment and after giving effect theretothe making of any payments in connection with the formation or acquisition of such Subsidiary, Excess Availability plus Unrestricted Cash shall not be less than or the amount equal to thirty-five (35%) percent purchase of the Maximum Creditassets of any third Person, (ii) as of the date of such loan or investment and in each case after giving effect thereto, no Default or Event of Default shall exist or shall have occurred and be continuing, ;
(iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (ivii) the aggregate amount of all such loans investments and investments payments made in Excluded connection with the acquisition or formation of Subsidiaries (or series of related acquisitions) plus the aggregate amount of the purchase price in respect of all acquisitions (or series of related acquisitions) of the assets of any third Person, including in each case any and all payments made after the closing thereof, shall not exceed $5,000,00010,000,000 in any fiscal year and shall not exceed $40,000,000 during the term of this Agreement,
(iii) in the case of the formation or acquisition of any Subsidiary by Borrower or any Guarantor, the Subsidiary formed or acquired shall be engaged in a business related, ancillary or complementary to the business of Borrower and in the case of the purchase of the assets or properties of any third Person by Borrower or any Guarantor, the assets or properties being acquired shall be related, ancillary or complementary to the business of the Borrower;
(liv) in the case of the formation or acquisition by Borrower or any Guarantor of any Subsidiary; provided, thatas to any such Subsidiary, if (A) Borrower or the Guarantor forming or acquiring such Subsidiary shall cause any such Subsidiary to execute and deliver to Agent, the following (each in form and substance satisfactory to Agent), (1) an absolute and unconditional guarantee of payment of the Obligations, (2) a security agreement granting to Agent a security interest and lien (except as otherwise consented to in writing by Agent and such liens as are otherwise permitted to exist under the terms of the Financing Agreements) upon all of the assets of any such Subsidiary, (3) a joinder agreement which will evidence that such Subsidiary shall be a Guarantor under the Loan Agreement, and/or (4) such other agreements, documents and instruments as Agent may require, including, but not limited to, supplements and amendments hereto (all such agreements to be in form and substance substantially similar to the same types of agreements executed in connection with this Agreement on or prior to the date hereof), and (B) Borrower or the Guarantor forming such Subsidiary shall (1) execute and deliver to Agent, a pledge and security agreement (in form and substance substantially similar to the same type of agreement executed by Borrower in favor of Agent on or prior to the date hereof) granting to Agent a pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary, and (2) deliver to Agent (or Term Loan Agent, as applicable) the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company), together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company in which such interests are certificated, or otherwise take such actions as Agent shall reasonably require with respect to Agent’s security interests therein);
(v) the assets of any Subsidiary is formed for the purpose of makingor acquired by Borrower or any Guarantor, or the assets acquired by Borrower or any Guarantor, as applicable, shall in anticipation each case be free and clear of consummatingany security interests, a Permitted Acquisitionmortgages, pledges, liens, charges or other encumbrances (other than those permitted in this Agreement) and Agent shall have received evidence satisfactory to it of the same,
(vi) Agent shall have received (A) not less than five (5) Business Days’ prior written notice thereof setting forth in reasonable detail, to the extent applicable, (1) the nature and terms of such formation, acquisition or purchase, (2) the proposed date and amount of such formation, acquisition or purchase, (3) a description of all items required by Sections 5.2 assets to be acquired, and 9.21 hereof with respect (4) the total purchase price for the assets to such Subsidiary be purchased (subject to and the terms of Section 9.21(dpayment of such purchase price), (B) hereof); and
(m) the loans true, correct and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 above; provided complete copies of all material agreements, that, as documents and instruments relating to such loans and advancesformation, Borrowers and Guarantors shall notacquisition or purchase, directly (C) in the case of any acquisition of a Subsidiary, evidence reasonably satisfactory to Agent that such acquisition has been approved by the board of directors (or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Companyequivalent governing body) shall, prior to the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unless, as of the date of any such loan, advance, investment, purchase or repurchase, no Default of Event of Default shall have occurred and Subsidiary to be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to thirty-five (35%) percent of the Maximum Credit.acquired,
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Loans, Investments, Etc. Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any Subsidiaries (each of the foregoing, for the purposes of this Section 9.10, an “investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, Equivalents (or which were Cash Equivalents at the time the investment was made); provided, that, (i) at any time that Agent may have the right to instruct the depository banks at which the Blocked Accounts are maintained to transfer funds to the Agent Payment Account, only if a Cash Dominion Period exists, no Loans are then outstanding; except, except that that, notwithstanding that any Loans are outstanding if a Cash Dominion Period existsoutstanding, (A) Borrowers and Guarantors Borrower may from time to time in the ordinary course of business consistent with their the current practices of Borrower as of the date hereof make deposits of cash or other immediately available funds in bank operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than three five (35) Business Days from the date of the initial deposit thereofthereof and do not exceed $3,000,000 at any time) and (B) Borrowers and Guarantors may have cash at retail store locations and in Store Accounts to the extent permitted in Section 6.3(a) hereof and (ii) to the extent applicable, the terms and conditions of Section 5.2 5.4 hereof shall have been satisfied apply with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;; except, that, Borrower shall not be required to deliver an Deposit Account Control Agreement or Investment Property Control Agreement as to any specific deposit account, investment account or other account which at all times has less than $25,000 in it so long as the aggregate amount of all deposits or other funds or investments in all of such accounts is less than $100,000 and no Default or Event of Default shall exist or have occurred and be continuing (provided, that, at any time either such amounts as to any account are exceeded or all of such accounts are exceeded or a Default or Event of Default shall exist or have occurred and be continuing, Borrower shall, promptly upon Agent’s request, deliver, and cause to be promptly delivered, to Agent such Deposit Account Control Agreements or Investment Property Control Agreements as Agent may specify).
(c) the equity investments made by each of Borrower in its Subsidiaries; provided, that, Borrower shall not make, and Guarantor prior shall not have any obligation to make or liability for, any further capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries, except to the date hereof in any of its Subsidiaries which are not Borrowers extent such capital contribution or Guarantorsother additional investment may be permitted under Section 9.10(h) below;
(d) loans and advances by any Borrower or Guarantor to employees of such Borrower or Guarantor not to exceed the principal amount of $5,000,000 300,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employee in connection with their work for such Borrower or Guarantor and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(e) stock or obligations issued to any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to Agent, upon Agent’s request, together with such stock power, assignment or endorsement by Borrower as Agent may request;
(f) obligations of account debtors to any Borrower or Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or GuarantorBorrower; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower or GuarantorBorrower, such promissory note shall be endorsed to the order of Agent by such Borrower or Guarantor and promptly delivered to Agent as so endorsed to the extent required by Section 5.2(b) hereofendorsed;
(g) loans of money or property (other than Collateral or a Financing Company Investment) by a Borrower to any Person (other than any Subsidiary of Borrower existing as of the date hereof) after the date hereof or Guarantor to another investment by Borrower or Guarantor in any Person (other than any Subsidiary of Borrower existing as of the date hereof) after the date hereof, provided, that,
(i) as to all or the formation or acquisition by Borrower of such loans, any direct or indirect Subsidiary of Borrower after the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, and (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower (it being understood that, so long as no Event of Default has occurred and is continuing, such Borrower may pay, and such Guarantor may receive, payments of principal and interest in respect of such Indebtedness);
(h) any Permitted Acquisitiondate hereof; provided, that, in no event shall any assets acquired pursuant as to any Permitted Acquisition be deemed to be Eligible Accountssuch loans or investments, Eligible Equipmentor the formation or acquisition of any such Subsidiary, Eligible Real Property, Eligible Credit Card Receivables or Eligible Inventory unless each of the following conditions shall be is satisfied as reasonably determined by Agent: Agent in:
(1i) Agent shall have received an appraisal of the Inventory of Person receiving such loan or investment or the Acquired Business and such other assets of the Acquired Business as Agent may specifySubsidiary formed or acquired, in each case in form and containing assumptions and appraisal methods satisfactory to Agent by an appraiser acceptable to Agent, on which Agent and Lenders are expressly permitted to rely, and (2) Agent shall have completed a field examination with respect to the business and assets of the Acquired Business in accordance with Agent’s customary procedures and practices and as otherwise required by the nature and circumstances of the business of the Acquired Business, the scope and results of which shall be satisfactory to Agent and any accounts, credit card receivables, inventory, equipment or real estate of the Acquired Business shall only be Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) , shall be engaged in a business related, ancillary or complimentary to the extent the criteria for Eligible Accounts, Eligible Credit Card Receivables, Eligible Inventory, Eligible Equipment or Eligible Real Property (as the case may be) set forth herein are satisfied with respect thereto business of Borrower permitted in accordance with this Agreement (or such other or additional criteria as Agent may in good faith establish with respect thereto in accordance with this Agreement and subject to such Reserves as Agent may in good faith establish in connection with the Acquired Business);Agreement,
(i) equity investments by each Borrower and Guarantor in another Borrower or Guarantor;
(j) loans and other investments by a Borrower or Guarantor to a Person that is neither an HPT Company or an Affiliate of a Borrower or Guarantor; provided, that, (iii) as of the date of any such loan or investment investment, or the formation or acquisition of such Subsidiary or any payments in connection with the formation or acquisition of such Subsidiary, and in each case after giving effect thereto, Excess Availability plus Unrestricted Cash no Default or Event of Default shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Creditexist or have occurred, (ii) such loans and investments are not made in connection with a Permitted Acquisition, and (iii) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default Agent shall have occurred received current, updated projections of the amount of the Borrowing Base and be continuing;
Excess Availability for the six (k6) loans month period after the date of such acquisition, in a form reasonably satisfactory to Agent, representing Borrower’s reasonable best estimate of the future Borrowing Base and other investments by a Excess Availability for the period set forth therein as of the date not more than ten (10) days prior to the date of such acquisition, which projections shall have been prepared on the basis of the assumptions set forth therein which Borrower or Guarantor to Excluded Subsidiaries; provided, that, (i) believes are fair and reasonable as of the date of such loan or investment preparation in light of current and after giving effect thereto, reasonably foreseeable business conditions and which projections shall show Excess Availability plus Unrestricted Cash shall not be less than the amount equal to thirty-five (35%) percent of the Maximum Credit, (ii) as of the date of $30,000,000 at any time during such loan or investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (iii) all Indebtedness and other obligations of the Excluded Subsidiaries shall be non-recourse to Borrowers and Guarantors and their respective assets and (iv) the aggregate amount of all such loans and investments in Excluded Subsidiaries shall not exceed $5,000,000;
(l) the formation of any Subsidiary; provided, that, if any Subsidiary is formed for the purpose of making, or in anticipation of consummating, a Permitted Acquisition, Agent shall have received all items required by Sections 5.2 and 9.21 hereof with respect to such Subsidiary (subject to the terms of Section 9.21(d) hereof); and
(m) the loans and advances set forth on Schedule 9.10 to the Information Certificate which are not otherwise permitted by this Section 9.10 above; provided , that, as to such loans and advances, Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto. Notwithstanding anything to the contrary contained in this Agreement, no Borrower or Guarantor (other than a Petro Company) shall, prior to the Petro Existing Security Agreement Termination Date, make any loans or advances to, invest in, or purchase or repurchase any Capital Stock, Indebtedness or other assets of, any Petro Company unless, as of the date of any such loan, advance, investment, purchase or repurchase, no Default of Event of Default shall have occurred and be continuing and Excess Availability plus Unrestricted Cash shall not be less than an amount equal to thirty-five (35%) percent of the Maximum Credit.period,
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