OR OTHERWISE CAUSE OR
SUFFER TO EXIST OR BECOME EFFECTIVE ANY CONSENSUAL ENCUMBRANCE OR RESTRICTION OF
ANY KIND ON THE ABILITY OF THE COMPANY OR SUCH GROUP MEMBER TO:
(A) PAY
DIVIDENDS OR MAKE ANY OTHER DISTRIBUTION ON ANY OF SUCH SUBSIDIARY'S CAPITAL
STOCK OWNED BY THE COMPANY OR ANY GROUP MEMBER; (B) SUBJECT TO SUBORDINATION
PROVISIONS FOR THE BENEFIT OF AND ACCEPTABLE TO PURCHASER, PAY ANY INDEBTEDNESS
OR OTHER OBLIGATION OWED TO THE COMPANY OR ANY OTHER GROUP MEMBER; (C) MAKE
LOANS OR ADVANCES TO THE COMPANY OR ANY OTHER SUBSIDIARY; OR (D) SELL, LEASE OR
TRANSFER ANY OF ITS PROPERTY OR ASSETS TO THE COMPANY OR ANY OTHER GROUP MEMBER.
9.19
MODIFICATION OF SENIOR LOAN AGREEMENTS.
THE COMPANY
WILL NOT, AND WILL NOT PERMIT ANY GROUP MEMBER TO, AMEND, REPLACE, REFINANCE OR
OTHERWISE MODIFY THE SENIOR LOAN AGREEMENTS OR ANY OF THE SENIOR LOAN DOCUMENTS,
AS IN EFFECT ON THE CLOSING DATE, IN ANY WAY MATERIALLY ADVERSE TO THE
PURCHASER.
9.20
LIMITATIONS ON LAYERING.
THE COMPANY SHALL NOT, AND
SHALL NOT PERMIT ANY OTHER GROUP MEMBER TO, INCUR ANY INDEBTEDNESS THAT IS
EXPRESSLY (I) SUBORDINATE OR JUNIOR IN RIGHT OF PAYMENT TO ANY INDEBTEDNESS
ARISING UNDER ANY SENIOR INDEBTEDNESS, AND (II) SENIOR IN ANY RESPECT IN RIGHT
OF PAYMENT TO ANY INDEBTEDNESS ARISING UNDER THIS AGREEMENT AND THE NOTE.
9.21
SALE LEASEBACKS.
THE COMPANY SHALL NOT, NOR SHALL
IT PERMIT ANY OF THE OTHER GROUP MEMBERS TO, DIRECTLY OR INDIRECTLY, BECOME OR
REMAIN LIABLE AS LESSEE OR AS GUARANTOR OR OTHER SURETY WITH RESPECT TO ANY
LEASE, WHETHER AN OPERATING LEASE OR A CAPITAL LEASE OBLIGATION, OF ANY PROPERTY
(WHETHER REAL, PERSONAL OR MIXED), WHETHER NOW OWNED OR HEREAFTER ACQUIRED,
(A) THAT THE COMPANY OR ANY OTHER GROUP MEMBER HAS SOLD OR TRANSFERRED OR IS TO
SELL OR TRANSFER TO A PERSON WHICH IS NOT THE COMPANY OR A SUBSIDIARY THEREOF,
OR (B) THAT THE COMPANY OR ANY OTHER GROUP MEMBER INTENDS TO USE FOR
SUBSTANTIALLY THE SAME PURPOSE AS ANY OTHER PROPERTY WHICH HAS BEEN SOLD OR IS
TO BE SOLD OR TRANSFERRED BY THE COMPANY OR ANY OTHER GROUP MEMBER TO ANOTHER
PERSON WHICH IS NOT THE COMPANY OR A GROUP MEMBER THEREOF IN CONNECTION WITH
SUCH LEASE EXCEPT, IN EACH CASE, TO THE EXTENT THE DISPOSITION OF SUCH PROPERTY
WOULD BE A PERMITTED DISPOSITION, AND THE INDEBTEDNESS INCURRED WOULD BE
PERMITTED INDEBTEDNESS.
53
9.22
HEDGING AGREEMENTS.
NEITHER THE COMPANY NOR ANY
GROUP MEMBER SHALL ENTER INTO, CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY
INTEREST RATE, CURRENCY, COMMODITY OR OTHER SWAP, COLLAR OR CAP AGREEMENT OR
SIMILAR HEDGE, EXCEPT IN THE ORDINARY COURSE OF BUSINESS FOR NON-SPECULATIVE
PURPOSES.
9.23
INDEPENDENT DIRECTORS.
THE COMPANY SHALL CAUSE EACH
MEMBER OF THE PUMPKIN GROUP TO AT ALL TIMES HAVE AT LEAST ONE DIRECTOR WHO IS
NOT AN EMPLOYEE, OFFICER OR DIRECTOR OF ANY GROUP MEMBER.
ARTICLE 10
PREPAYMENT
10.01
OPTIONAL PREPAYMENT.
SUBJECT FOLLOWING THE RELEASE DATE
TO SECTION 7 OF THE NOTE, THE COMPANY MAY PREPAY OUTSTANDING