AND SHALL NOT PERMIT ANY GROUP
MEMBER TO, DIRECTLY OR INDIRECTLY, MAKE OR OWN ANY INVESTMENT IN ANY PERSON
EXCEPT:
(A) INVESTMENTS IN
50
CASH EQUIVALENTS; PROVIDED THAT SUCH CASH EQUIVALENTS ARE NOT SUBJECT TO SETOFF
RIGHTS IN FAVOR OF THE ISSUING BANK ARISING FROM ANY EXISTING BANKING
RELATIONSHIP; (B) (I) INTERCOMPANY LOANS TO THE EXTENT PERMITTED UNDER
SECTION 9.04, AND (II) OTHER INVESTMENTS BY THE COMPANY OR ANY SUBSIDIARY
GUARANTOR INTO THE COMPANY OR ANY OTHER SUBSIDIARY GUARANTOR; (C) LOANS AND
ADVANCES TO EMPLOYEES OF THE GROUP FOR MOVING, ENTERTAINMENT, TRAVEL AND OTHER
SIMILAR EXPENSES IN THE ORDINARY COURSE OF BUSINESS NOT TO EXCEED $200,000 IN
THE AGGREGATE AT ANY TIME OUTSTANDING; (D) RECEIVABLES OWING TO THE COMPANY OR
ANY OTHER GROUP MEMBER AND ADVANCES OR PREPAYMENTS TO SUPPLIERS OR OTHER
ADVANCES IN CONNECTION WITH THE PURCHASE OF GOODS, IN EACH CASE IF CREATED,
ACQUIRED OR MADE IN THE ORDINARY COURSE OF BUSINESS AND PAYABLE OR DISCHARGEABLE
IN ACCORDANCE WITH CUSTOMARY TRADE TERMS; (E) INVESTMENTS RECEIVED IN CONNECTION
WITH THE BANKRUPTCY OR REORGANIZATION OF SUPPLIERS AND CUSTOMERS OR IN
SETTLEMENT OF DELINQUENT OBLIGATIONS OF, AND OTHER DISPUTES WITH, CUSTOMERS AND
SUPPLIERS ARISING IN THE ORDINARY COURSE OF BUSINESS; (F) COMMISSION, TRAVEL,
PETTY CASH AND SIMILAR ADVANCES TO OFFICERS, EMPLOYEES, CONSULTANTS AND AGENTS
IN THE ORDINARY COURSE OF BUSINESS; (G) INVESTMENTS CONSISTING OF HEDGING
AGREEMENTS, TO THE EXTENT PERMITTED UNDER THE SENIOR LOAN AGREEMENTS AND
SECTION 9.22; (H) INVESTMENTS CONSISTING OF (I) PREPAID EXPENSES, (II)
NEGOTIABLE INSTRUMENTS HELD FOR COLLECTION, (III) LEASE, UTILITY, WORKERS'
COMPENSATION, PERFORMANCE AND OTHER SIMILAR DEPOSITS, AND (IV) INSURANCE CLAIM
RECEIVABLES; (I) INVESTMENTS IN THE PUMPKIN GROUP AND THE P.D. HOLDINGS GROUP
EXISTING ON THE CLOSING DATE (BUT NOT ANY INCREASE THEREOF); AND (J) ADDITIONAL
INVESTMENTS IN THE FORM, HOWEVER STRUCTURED, OF STRATEGIC PARTNERSHIPS OR JOINT
VENTURES WITH PERSONS (OTHER THAN INVESTMENTS IN ANY P.D. HOLDINGS GROUP MEMBER,
ANY MEMBER OF PUMPKIN GROUP OR PERSONS WHO ARE AFFILIATES OF THE COMPANY PRIOR
TO SUCH INVESTMENT) ENGAGED IN BUSINESSES WHICH ARE THE SAME OR STRATEGICALLY
RELATED TO THE BUSINESS OF THE COMPANY BUT IN NO EVENT SHALL SUCH ADDITIONAL
INVESTMENTS EXCEED $500,000 IN THE AGGREGATE AT ANY ONE TIME OUTSTANDING.
9.12
CONTINGENT OBLIGATIONS.
THE COMPANY SHALL NOT, NOR
SHALL IT PERMIT ANY OF THE OTHER GROUP MEMBERS TO, DIRECTLY OR INDIRECTLY,
CREATE OR BECOME LIABLE WITH RESPECT TO ANY CONTINGENT OBLIGATION EXCEPT THOSE:
(A) RESULTING FROM ENDORSEMENTS OF NEGOTIABLE INSTRUMENTS FOR COLLECTION IN THE
ORDINARY COURSE OF BUSINESS; (B) ARISING UNDER THE INVESTMENT DOCUMENTS; (C)
EXISTING ON THE CLOSING DATE AND AS DESCRIBED IN SCHEDULE 9.12 ANNEXED HERETO;
(D) ARISING WITH RESPECT TO CUSTOMARY INDEMNIFICATION AND PURCHASE PRICE
ADJUSTMENT OBLIGATIONS INCURRED IN CONNECTION WITH ANY ASSET DISPOSITIONS; (E)
INCURRED IN THE ORDINARY COURSE OF BUSINESS WITH RESPECT TO SURETY AND APPEAL
BONDS, PERFORMANCE AND RETURN-OF-MONEY BONDS AND SIMILAR OBLIGATIONS NOT
EXCEEDING ANY TIME OUTSTANDING $50,000 IN AGGREGATE LIABILITY; (F) INCURRED WITH
RESPECT TO ANY INDEBTEDNESS PERMITTED PURSUANT TO SECTION 9.04 HEREOF; (G)
GUARANTEES BY THE COMPANY