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EXHIBIT 10.1
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$65,000,000
AMENDED AND RESTATED
CREDIT AGREEMENT
among
PUEBLO XTRA INTERNATIONAL, INC.,
PUEBLO INTERNATIONAL, INC.,
XTRA SUPER FOOD CENTERS, INC.,
VARIOUS LENDING INSTITUTIONS,
THE BANK OF NOVA SCOTIA
AS ADMINISTRATIVE AGENT
and
NATIONSBANK, N.A. (SOUTH)
AS SYNDICATION AGENT
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Dated as of April 29, 1997
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TABLE OF CONTENTS
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SECTION 1. Amount and Terms of Credit...................................... 1
1.01 Commitments...................................................... 1
1.02 Minimum Borrowing Amounts, etc................................... 3
1.03 Notice of Borrowing.............................................. 3
1.04 Disbursement of Funds............................................ 5
1.05 Notes............................................................ 6
1.06 Conversions...................................................... 7
1.07 Pro Rata Borrowings.............................................. 7
1.08 Interest......................................................... 7
1.09 Interest Periods................................................. 8
1.10 Increased Costs, Illegality, etc................................. 9
1.11 Compensation.....................................................12
1.12 Change of Lending Office.........................................13
1.13 Notice of Certain Costs..........................................13
1.14 Replacement of Banks.............................................13
SECTION 2. Letters of Credit...............................................14
2.01 Letters of Credit................................................15
2.02 Letters of Credit Participations.................................16
2.03 Letter of Credit Requests; Notices of
Issuance.......................................................19
2.04 Agreement to Repay Letter of Credit
Drawings.......................................................19
2.05 Increased Costs .................................................20
SECTION 3. Fees; Commitments...............................................21
3.01 Fees.............................................................21
3.02 Voluntary Reduction of Commitments...............................23
3.03 Mandatory Reductions of Commitments, etc.........................23
SECTION 4. Payments....................................................... 24
4.01 Voluntary Prepayments........................................... 24
4.02 Mandatory Prepayments.......................................... 25
(A) Requirements..............................................25
(B) Application...............................................25
4.03 Method and Place of Payment......................................26
4.04 Net Payments.....................................................26
SECTION 5. Conditions Precedent............................................29
5.01 Conditions Precedent to Restatement
Effective Date.,.................................................29
(a) Effectiveness; Notes......................................29
(b) Opinions of Counsel.......................................29
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(c) Corporate Proceedings......................................29
(d) Original Credit Agreement..................................30
(e) Issuance of PXI Senior Notes...............................30
(f) Pledge Agreement...........................................30
(g) Subsidiary Guaranty........................................32
(h) Security Agreements........................................32
(i) Mortgages; Intercompany Mortgages;
Title Insurance; Surveys; Etc .............................33
(j) Solvency Certificate.......................................34
(k) Insurance Policies.........................................34
(l) Consent Letter.............................................35
(m) Payment of Fees............................................35
(n) Adverse Change.............................................35
(o) Litigation.................................................35
(p) Depositary Account Agreement...............................35
5.02 Conditions Precedent to All Credit Events .......................35
Section 6. Representations, Warranties and
Agreements....................................................36
6.01 Corporate Status.................................................37
6.02 Corporate Power and Authority....................................37
6.03 No Violation.....................................................37
6.04 Litigation.......................................................37
6.05 Use of Proceeds..................................................38
6.06 Governmental Approvals...........................................38
6.07 Investment Company Act...........................................38
6.08 Public Utility Holding Company Act...............................38
6.09 True and Complete Disclosure.....................................38
6.10 Financial Condition; Financial Statements........................39
6.11 Security Interests...............................................40
6.12 Tax Returns and Payments.........................................38
6.13 Compliance with ERISA............................................39
6.14 Subsidiaries.....................................................40
6.15 Patents, etc.....................................................41
6.16 Compliance with Statutes, etc....................................41
6.17 Properties.......................................................42
6.18 Labor Relations; Collective Bargaining
Agreements.....................................................44
6.19 Indebtedness.....................................................45
6.20 Restrictions on Subsidiaries.....................................45
6.21 PXI Senior Notes, etc............................................45
SECTION 7. Affirmative Covenants............................................46
7.01 Information Covenants............................................46
(a) Annual Financial Statements................................46
(b) Quarterly Financial Statements.............................46
(c) Monthly Reports............................................47
(d) Budgets; etc...............................................47
(e) Officer's Certificates.....................................47
(ii)
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(c) Notice of Default or Litigation............................47
(d) Environmental Matters......................................48
(e) Other Information..........................................48
7.02 Books, Records and Inspections...................................49
7.03 Payment of Taxes.................................................49
7.04 Corporate Franchises.............................................49
7.05 Compliance with Statutes, etc....................................50
7.06 ERISA............................................................51
7.07 Good Repair......................................................52
7.08 End of Fiscal Years; Fiscal Quarters.............................53
7.09 Maintenance of Property; Insurance...............................53
7.10 Additional Security; Further Assurances..........................53
7.11 Maintenance of Corporate Separateness............................55
Section 8. Negative Covenants..............................................55
8.01 Consolidation, Merger, Sale or Purchase of
Assets, etc.............................. .....................55
8.02 Liens............................................................57
8.03 Indebtedness.....................................................59
8.04 Capital Expenditures.............................................60
8.05 Advances, Investments and Loans..................................60
8.06 Dividends, etc...................................................62
8.07 Transactions with Affiliates.....................................63
8.08 Changes in Business..............................................63
8.09 EBITDA to Total Cash Interest Expense............................63
8.10 Consolidated Indebtedness to EBITDA..............................64
8.11 Senior Secured Debt to EBITDA....................................65
8.12 Limitation on Voluntary Payments; Preferred
Stock..........................................................65
8.13 Issuance of Subsidiary Stock.....................................66
8.14 Limitation on Restrictions Affecting
Subsidiaries...................................................66
SECTION 9. Events of Default...............................................66
9.01 Payments.........................................................66
9.02 Representations, etc.............................................67
9.03 Covenants........................................................67
9.04 Default Under Other Agreements...................................67
9.05 Bankruptcy, etc..................................................67
9.06 ERISA............................................................68
9.07 Security Documents...............................................69
9.08 Guaranties.......................................................69
9.09 Judgments........................................................69
9.10 Change of Control................................................69
SECTION 10. Definitions.....................................................70
(iii)
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SECTION 11. The Administrative Agent, etc...................................94
11.01 Appointment......................................................94
11.02 Delegation of Duties.............................................95
11.03 Exculpatory Provisions...........................................95
11.04 Reliance by Administrative Agent, etc............................96
11.05 Notice of Default................................................96
11.06 Non-Reliance on Administrative Agent and
Other Banks.....................................................96
11.07 Indemnification..................................................97
11.08 Individual Capacity..............................................98
11.09 Resignation; Removal; Successors.................................98
SECTION 12. Miscellaneous...................................................98
12.01 Payment of Expenses, etc.........................................98
12.02 Right of Setoff..................................................99
12.03 Notices.........................................................100
12.04 Benefit of Agreement............................................100
12.05 No Waiver; Remedies Cumulative..................................102
12.06 Payments Pro Rata...............................................103
12.07 Calculations; Computations......................................103
12.08 Governing Law; Submission to Jurisdiction;
Venue..........................................................104
12.09 Counterparts....................................................105
12.10 Headings Descriptive............................................105
12.11 Amendment or Waiver.............................................105
12.12 Survival........................................................106
12.13 Domicile of Loans...............................................106
12.14 Registry........................................................106
SECTION 13. Guaranty.......................................................107
13.01 The Guaranty....................................................107
13.02 Bankruptcy......................................................108
13.03 Nature of Liability.............................................108
13.04 Independent Obligation..........................................108
13.05 Authorization...................................................109
13.06 Reliance........................................................110
13.07 Subordination...................................................110
13.08 Waiver..........................................................110
13.09 Limitation on Enforcement.......................................112
13.10 Rights of Contribution..........................................112
13.11 Post Closing Actions............................................112
(a) Depository Account Agreement.............................112
(b) Mortgage Amendments......................................113
(c) Intellectual Property....................................113
(d) Insurance Certificates...................................113
(iv)
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SCHEDULE I - Banks/Commitments
SCHEDULE II - Existing Letters of Credit
SCHEDULE III - Liabilities
SCHEDULE IV - Reportable Events
SCHEDULE V - Subsidiaries
SCHEDULE VI - Real Property
SCHEDULE VII - Collective Bargaining Agreements
SCHEDULE VIII - Permitted Existing Indebtedness
SCHEDULE IX - Insurance
SCHEDULE X - Permitted Liens
SCHEDULE XI - Existing Investments
EXHIBIT A-1 - Revolving Note
EXHIBIT A-2 - Swingline Note
EXHIBIT B - Letter of Credit Request
EXHIBIT C - Officer's Certificate
EXHIBIT D-1 - Opinion of Milbank, Tweed, Xxxxxx
& XxXxxx
EXHIBIT D-2 - Opinion of White & Case
EXHIBIT E-1 - PXI Pledge Agreement
EXHIBIT E-2 - Borrower Pledge Agreement
EXHIBIT E-3 - Xtra Pledge Agreement
EXHIBIT E-4 - XM Pledge Agreement
EXHIBIT F - Subsidiary Guaranty
EXHIBIT G-1 - Borrower Security Agreement
EXHIBIT G-2 - Subsidiary Security Agreement
EXHIBIT H - Solvent Certificate
EXHIBIT I - Consent Letter
EXHIBIT J-1 - Subordinated Intercompany Real Estate
Note
EXHIBIT J-2 - Subordinated Intercompany Notes
EXHIBIT K - Assignment Agreement
EXHIBIT L - Depositary Account Agreement
EXHIBIT M - Cancelled Subordinated Note
(v)
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AMENDMENT AND RESTATEMENT dated as of April 29, 1997 to Credit
Agreement, dated as of July 21, 1993, among PUEBLO XTRA INTERNATIONAL, INC., a
Delaware corporation ("PXI"), PUEBLO INTERNATIONAL, INC., a Delaware corporation
(the "Borrower"), XTRA SUPER FOOD CENTERS, INC., a Delaware corporation
("Xtra"), the lending institutions listed from time to time on Schedule I hereto
(each a "Bank" and, collectively, the "Banks"), THE BANK OF NOVA SCOTIA as
Administrative Agent and NATIONSBANK, N.A. (SOUTH) as Syndication Agent. Unless
otherwise defined herein, all capitalized terms used herein and defined in
Section 10 are used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower, PXI, Xtra and certain financial institutions
are party to a Credit Agreement dated as of July 21, 1993 (as the same has been
amended, modified or supplemented prior to the Restatement Effective Date, the
"Original Credit Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Original
Credit Agreement as herein provided;
NOW, THEREFORE, the parties hereto agree that the Original Credit
Agreement shall be and hereby is amended and restated in its entirety as
follows, provided if the Restatement Effective Date has not occurred on or prior
to June 30, 1997 this amendment and restatement shall be void and of no further
effect, with the Original Credit Agreement to remain in effect;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 Commitments. (A) Subject to and upon the terms and conditions
herein set forth, each Bank severally agrees to make a loan or loans (each a
"Revolving Loan" and, collectively, the "Revolving Loans") to the Borrower,
which Loans (i) may be incurred by the Borrower at any time and from time to
time on and after the Restatement Effective Date and prior to the Maturity Date,
(ii) except as hereinafter provided, may, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or
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Eurodollar Loans, provided that all Revolving Loans made by all Banks pursuant
to the same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Loans of the same Type, (iii) may be repaid and reborrowed
in accordance with the provisions hereof, (iv) shall not exceed in aggregate
principal amount for any Bank at any time outstanding the amount which, when
combined with such Bank's Adjusted Percentage of the sum of (x) the L/C
Outstandings plus (y) the outstanding principal amount of Swingline Loans, in
each case at such time, equals the Revolving Commitment of such Bank at such
time and (v) shall not exceed in aggregate principal amount at any time
outstanding the amount which, when added to the outstanding principal amount of
Swingline Loans and the L/C Outstandings, would equal the sum of (x) the
Adjusted Total Revolving Commitment plus (y) the outstanding principal amount of
Revolving Loans of Defaulting Banks.
(B) Subject to and upon the terms and conditions herein set forth,
Scotiabank, in its individual capacity, agrees to make at any time and from time
to time after the Restatement Effective Date and prior to the Swingline
Termination Date, a loan or loans to the Borrower (each a "Swingline Loan," and
collectively the "Swingline Loans"), which Swingline Loans (i) shall be made and
maintained as Base Rate Loans, (ii) shall have the benefit of the provisions of
Section 1.01(C), (iii) may be repaid and reborrowed in accordance with the
provisions hereof, (iv) shall not exceed in aggregate principal amount at any
time outstanding, when combined with the aggregate principal amount of all
Revolving Loans made by Non-Defaulting Banks then outstanding and all L/C
Outstandings at such time, the Adjusted Total Revolving Commitment then in
effect and (v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount. Scotiabank will not make a Swingline
Loan after it has received written notice from the Borrower, either Agent or the
Required Banks that a Default or Event of Default exists until such time as
Scotiabank shall have received written notice of (x) rescission of all such
notices from the party or parties originally delivering same or (y) the waiver
of such Default or Event of Default by the Required Banks.
(C) On any Business Day, Scotiabank may, in its sole discretion, give
notice to the Banks (with an information copy to the Borrower, provided that the
failure to give such notice to the Borrower shall in no way affect the validity
and effectiveness of such notice) that its outstanding Swingline Loans shall be
funded with a Borrowing of
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Revolving Loans (provided that each such notice shall be deemed to have been
automatically given upon the occurrence of an Event of Default under Section
9.05), in which case a Borrowing of Revolving Loans constituting Base Rate Loans
(each such Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all Banks pro rata based on each Bank's Adjusted
Percentage, and the proceeds thereof shall be applied directly to repay
Scotiabank for such outstanding Swingline Loans. Each Bank hereby irrevocably
agrees to make such Base Rate Loans upon one Business Day's notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the
preceding sentence and on the date specified in writing by Scotiabank
notwithstanding (i) that the amount of the Mandatory Borrowing may not comply
with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any
conditions specified in Section 5 are then satisfied, (iii) whether a Default or
an Event of Default (including an Event of Default under Section 9.05) has
occurred and is continuing, (iv) the date of such Mandatory Borrowing and (v)
any reduction in the Adjusted Total Revolving Commitment or the Total Revolving
Commitment after any such Swingline Loans were made. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code in respect of the Borrower), each Bank
(other than Scotiabank) hereby agrees that it shall forthwith purchase from
Scotiabank (without recourse or warranty) such assignment of the outstanding
Swingline Loans as shall be necessary to cause the Banks to share in such
Swingline Loans ratably based upon their respective Adjusted Percentages,
provided that all interest payable on the Swingline Loans shall be for the
account of Scotiabank until the date the respective assignment is purchased and,
to the extent attributable to the purchased assignment, shall be payable to the
Bank purchasing same from and after such date of purchase.
1.02 Minimum Borrowing Amounts,etc. The aggregate principal amount
of each Borrowing shall not be less than the Minimum Borrowing Amount (except
that Mandatory Borrowings shall be made in the amounts required by Section
1.01(C)). More than one Borrowing may be incurred on any day, provided that at
no time shall there be outstanding more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) The Revolving Loans to be incurred by
the Borrower on the Restatement Effective Date shall be set forth in a written
notice (or telephonic notice promptly confirmed in writing) delivered by
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the Borrower to the Administrative Agent at its Notice Office no later than
12:00 Noon (New York time) on the Business Day immediately prior to the
Restatement Effective Date. Whenever the Borrower desires to incur Revolving
Loans after the Restatement Effective Date, it shall give the Administrative
Agent at its Notice Office, written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Eurodollar Loans prior to 12:00 Noon
(New York time) on the third Business Day preceding the date of the proposed
Borrowing and written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing of Base Rate Loans to be made hereunder prior to
10:00 A.M. (New York time) on the date of the proposed Borrowing. Each of the
foregoing notices (each, together with each notice of a Borrowing of Swingline
Loans, a "Notice of Borrowing") shall be irrevocable and shall specify (i) the
aggregate principal amount of the Revolving Loans to be incurred, (ii) the date
of incurrence (which shall be a Business Day) and (iii) whether the respective
incurrence shall consist of Base Rate Loans or, to the extent otherwise
permitted, Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall promptly give each
Bank written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of the proportionate share thereof of each Bank and of the
other matters covered by the Notice of Borrowing.
(b) Whenever the Borrower desires to incur a Swingline Loan
hereunder, it shall give Scotiabank not later than 12:00 Noon (New York time) on
the day such Swingline Loan is to be incurred, written notice or telephonic
notice promptly confirmed in writing of such Swingline Loan. Each such notice
shall be irrevocable and specify in each case (i) the date of incurrence (which
shall be a Business Day) and (ii) the principal amount of the Swingline Loan to
be incurred.
(c) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(C), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section.
(d) Without in any way limiting the obligation of the Borrower to
confirm in writing any notice it may give hereunder by telephone, the
Administrative Agent may act prior to receipt of written confirmation without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent in good faith to be from an Authorized
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Officer of the Borrower as a person entitled to give telephonic notices under
this Agreement on behalf of the Borrower. In each such case the Borrower hereby
waives the right to dispute the Administrative Agent's record of the terms of
any such telephonic notice.
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (2:00 P.M.
in the case of Swingline Loans) (New York time) on the date specified in each
Notice of Borrowing, each Bank will make available its pro rata share of each
Borrowing requested to be made on such date (or, in the case of Swingline Loans,
Scotiabank shall make available the full amount thereof) in the manner provided
below. Except as otherwise agreed among the Borrower and the Agents with respect
to the disbursement of funds on the Restatement Effective Date, all amounts
shall be made available to the Administrative Agent in U.S. dollars and
immediately available funds at the Payment Office and the Administrative Agent
promptly will make available to the Borrower by depositing to its account at the
Payment Office the aggregate of the amounts so made available in the type of
funds received. Unless the Administrative Agent shall have been notified by any
Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Bank and the Administrative
Agent has made available same to the Borrower, the Administrative Agent shall be
entitled to recover such corresponding amount from such Bank. If such Bank does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall pay such corresponding amount to the Administrative
Agent. The Administrative Agent shall also be entitled to recover from such Bank
or the Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by the Administrative Agent to the Borrower to the date such corresponding
amount is recovered by the Administrative Agent, at a rate per annum equal to
(x) if to be paid by such Bank, the customary rate set by the Administrative
Agent for the correction of errors among banks for each day during the period
consisting of the first three
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Business Days following such date of availability and thereafter at the Base
Rate or (y) if to be paid by the Borrower, the then applicable rate of interest,
calculated in accordance with Section 1.08, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Bank from its
obligation to fulfill its commitments hereunder to make Loans or to prejudice
any rights which any Borrower may have against any Bank as a result of any
default by such Bank hereunder.
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
and interest on, the Loans made to it by each Bank shall be evidenced (i) if
Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit A-1, with blanks appropriately
completed in conformity herewith (each a "Revolving Note" and collectively the
"Revolving Notes"), and (ii) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit A-2
with blanks appropriately completed in conformity herewith (the "Swingline
Note").
(b) The Revolving Note issued to each Bank shall (i) be payable to the
order of such Bank and be dated the Restatement Effective Date, (ii) be in a
stated principal amount equal to the Revolving Commitment of such Bank and be
payable in the principal amount of the Revolving Loans evidenced thereby, (iii)
mature on the Maturity Date, (iv) bear interest as provided in the appropriate
clause of Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans,
as the case may be, evidenced thereby, (v) be subject to mandatory repayment as
provided in Section 4.02 and (vi) be entitled to the benefits of this Agreement
and the other Credit Documents.
(c) The Swingline Note shall (i) be payable to the order of Scotiabank
and be dated the Restatement Effective Date, (ii) be in a stated principal
amount equal to the Maximum Swingline Amount and be payable in the principal
amount of the Swingline Loans evidenced thereby, (iii) mature on the Swingline
Termination Date, (iv) bear interest as provided in Section 1.08(a) and (v) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes, endorse on the reverse side thereof the
outstanding
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principal amount of Loans evidenced thereby and the last date or dates on which
interest has been paid in respect of the Loans evidenced thereby. Failure to
make any such notation shall not affect the Borrower's obligations in respect of
such Loans, or affect the validity of such transfer by any Bank of such Note.
1.06 Conversions. The Borrower shall have the option to convert on any
Business Day (or as otherwise, and to the extent, agreed to by the Agents), all
or a portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of the Revolving Loans into a Borrowing or
Borrowings of another Type of Loan provided that (i) no partial conversion of a
Borrowing of Eurodollar Loans shall reduce the outstanding principal amount of
the Loans pursuant to such Borrowing to less than the Minimum Borrowing Amount
applicable thereto, (ii) Loans may only be converted into Eurodollar Loans if no
Default or Event of Default is in existence on the date of the conversion and
(iii) Borrowings of Eurodollar Loans resulting from this Section 1.06 shall be
limited in number as provided in Section 1.02. Each such conversion shall be
effected by the Borrower giving the Administrative Agent at its Notice Office,
prior to 12:00 Noon (New York time), at least three Business Days (or one
Business Day in the case of a conversion into Base Rate Loans) prior written
notice (or telephonic notice promptly confirmed in writing) (each a "Notice of
Conversion") specifying the Loans to be so converted, the Type of Loans to be
converted into and, if to be converted into a Borrowing of Eurodollar Loans, the
Interest Period to be initially applicable thereto. The Administrative Agent
shall give each Bank prompt notice of any such proposed conversion affecting any
of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans shall be
made from the Banks pro rata on the basis of their Revolving Commitments,
provided that all Mandatory Borrowings shall be made from the Banks pro rata on
the basis of their Adjusted Percentages. It is understood that no Bank shall be
responsible for any default by any other Bank in its obligation to make or
support Loans hereunder and that each Bank shall be obligated to make or support
the Loans provided to be made or supported by it hereunder, regardless of the
failure of any other Bank to fulfill its commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate Loan
shall bear interest from the date of the Borrowing thereof until maturity
(whether by acceleration
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or otherwise) at a rate per annum which shall at all times be the Base Rate plus
the Base Rate Margin.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until maturity (whether by
acceleration or otherwise) at a rate per annum which shall at all times be the
relevant Eurodollar Rate plus the Eurodollar Margin.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the Base Rate in effect from time to time plus the sum of (i) 2% and (ii) the
Base Rate Margin, provided that no Loan shall bear interest after maturity
(whether by acceleration or otherwise) at a rate per annum less than 2% plus the
rate of interest applicable thereto at maturity.
(d) Interest shall accrue from and including the date of any Borrowing
to but excluding the date of any repayment thereof and shall be payable in
arrears (i) in respect of each Base Rate Loan, quarterly on the last Business
Day of each calendar quarter, (ii) in respect of each Eurodollar Loan, on the
last day of each Interest Period applicable thereto and, in the case of an
Interest Period of six months on the date occurring three months, after the
first day of such Interest Period and (iii) in respect of each Loan, on any
prepayment (on the amount prepaid), at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance
with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for
any Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify
the Borrower and the Banks thereof.
1.09 Interest Periods. At the time the Borrower gives a Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrow-
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ing, which Interest Period shall, at the option of such Borrower, be a one, two,
three or six month period. Notwithstanding anything to the contrary contained
above:
(i) the initial Interest Period shall commence on the date of such
Borrowing (including the date of any conversion from a Borrowing of another
Type of Loan) and each Interest Period occurring thereafter in respect of
such Borrowing shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) no Interest Period may be elected if it would extend beyond the
Maturity Date; and
(v) no Interest Period may be elected at any time when a Default or
Event of Default is then in existence.
If upon the expiration of any Interest Period, the Borrower has failed to elect
a new Interest Period to be applicable to the respective Borrowing of Eurodollar
Loans as provided above, or is unable to elect a new Interest Period as a result
of clause (v) above, the Borrower shall be deemed to have elected to convert
such Borrowing into a Borrowing of Base Rate Loans effective as of the
expiration date of such Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) in
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
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16
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the Restatement
Effective Date affecting the London interbank Eurodollar market, adequate
and fair means do not exist for ascertaining generally the applicable
interest rate on the basis provided for in the definition of Eurodollar
Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of taxes or similar charges) because of (x) any change since
the Restatement Effective Date in any applicable law, governmental rule,
regulation, guideline, order or request (whether or not having the force of
law) or in the interpretation or administration thereof and including the
introduction of any new law or governmental rule, regulation, guideline,
order or request (such as, for example, but not limited to, a change in
official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate) and/or (y) other circumstances adversely affecting the
London interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Bank in good faith with any
law, governmental rule, regulation, guideline or order (or would conflict
with any such governmental rule, regulation, guideline or order not having
the force of law but with which such Bank customarily complies even though
the failure to comply therewith would not be unlawful), or has become
impracticable as a result of a contingency occurring after the Restatement
Effective Date which adversely affects the London interbank Eurodollar
market;
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall (x) on such date and (y) within three Business Days
of the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and (except in the case of clause (i)) to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be
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available until such time as the Administrative Agent notifies the Borrower and
the Banks that the circumstances giving rise to such notice by the
Administrative Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion given by the Borrower with respect to Eurodollar Loans, which have
not yet been incurred shall be deemed rescinded, (y) in the case of clause (ii)
above, the Borrower shall pay to such Bank, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased costs
or reductions in amounts receivable hereunder (a written notice as to the
additional amounts owed to such Bank, showing in reasonable detail the basis for
the calculation thereof, submitted to the Borrower by such Bank shall, absent
manifest error, be final and conclusive and binding upon all parties hereto) and
(z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section l.lO(b) as promptly as possible and, in any event,
within the time period required by law.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii),
shall) either (i) if the affected Eurodollar Loan is then being made pursuant to
a Borrowing, cancel said Borrowing by giving the Administrative Agent telephonic
notice (confirmed promptly in writing) thereof on the same date that Borrower
was notified by a Bank pursuant to Section 1.10(a) or (iii) or (ii) if the
affected Eurodollar outstanding, upon at least three Business Days' notice to
the Administrative Agent, require the affected Bank to convert each such
Eurodollar Loan into a Loan of another Type, provided that if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section l.lO(b).
(c) If any Bank determines at any time that the adoption or
effectiveness of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or actual
compliance by such Bank with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of in-
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18
creasing the costs to such Bank to a level above that, or reducing the rate of
return on such Bank's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that, which such Bank could have achieved
but for such adoption, effectiveness, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy), then from
time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction. Each Bank, in
determining additional amounts owing under this Section 1.10(c) will act
reasonably and in good faith and will use averaging and attribution methods
which are reasonable, provided that such Bank's determination of such additional
amounts so performed shall, absent manifest error, be final and conclusive and
binding on all parties hereto. Each Bank, upon determining that any additional
amounts will be payable pursuant to this Section l.lO(c), will give prompt
written notice thereof to the Borrower, which notice shall set forth the basis
of the calculation of such additional amounts, although the failure to give any
such notice shall not release or diminish any of the Borrower's obligations to
pay additional amounts pursuant to this Section l.lO(c) upon receipt of such
notice.
1.11 Compensation. The Borrower shall compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans to the Borrower) which such Bank may sustain: (i) if
for any reason (other than a default by such Bank or the Administrative Agent) a
Borrowing of Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion (whether or not withdrawn by the
Borrower or deemed withdrawn pursuant to Section 1.10); (ii) if, for any reason,
any repayment or conversion of any of its Eurodollar Loans occurs on a date
which is not the last day of an Interest Period applicable thereto; (iii) if,
for any reason, any prepayment of any of its Eurodollar Loans is not made on any
date specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Eurodollar
Loans when required by the terms of this Agreement or (y) an election made
pursuant to Section 1.10(b). Calculation of all amounts payable to a Bank with
respect to Eurodollar Loans under this Section 1.11 shall be made as though that
Bank had actually
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funded its relevant Eurodollar Loan through the purchase of a Eurodollar deposit
bearing interest at the Eurodollar Rate in an amount equal to the amount of that
Loan, having a maturity comparable to the relevant Interest Period and through
the transfer of such Eurodollar deposit from an offshore office of that Bank to
a domestic office of that Bank in the United States of America (or if such Bank
has no offshore office, from an offshore office of the Administrative Agent to
the domestic office of the Administrative Agent); provided, however, that each
Bank may fund each of its Eurodollar Loans in any manner it sees fit and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this Section 1.11.
1.12 Change of Lending Office. Each Bank agrees that, upon the
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office of such Bank for any Loans or
Letters of Credit affected by such event, provided that such designation is made
on such terms that such Bank or its respective lending offices suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section 1.12 shall affect or postpone any of the obligations of
the Borrower or the right of any Bank provided in Section 1.10, 2.05 or 4.04.
1.13 Notice of Certain Costs. Notwithstanding anything in this
Agreement to the contrary, to the extent any notice required by Section 1.10 or
2.05 is given by any Bank more than 100 days after the occurrence of the event
giving rise to the additional cost, reduction in amounts or other additional
amounts of the type described in such Section, such Bank shall not be entitled
to compensation under Section 1.10 or 2.05, as the case may be, for any such
amounts incurred or accruing prior to the giving of such notice to the Borrower
or Borrowers.
1.14 Replacement of Banks. (a) If (x) any Bank becomes a Defaulting
Bank or otherwise defaults in its obligations to make Revolving Loans or fund
Unpaid Drawings or (y) any Bank is owed increased costs under Section 1.10(a)
(ii) or (iii), 1.10(c), 2.05 or 4.04, the Borrower shall have the right, in any
such case, if no Event of Default exists and, in the case of clause (y), the
affected Bank has not taken actions to eliminate such increased costs, to
replace
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such Bank (a "Replaced Bank") as a Bank hereunder, with one or more existing
Banks or Eligible Assignees reasonably satisfactory to the Administrative Agent
(collectively, the "Replacement Bank").
(b) In the case of a replacement of a Bank pursuant to this Section
1.14, (I) the Replacement Bank shall enter into one or more Assignment
Agreements as provided for in Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Bank) pursuant
to which the Replacement Bank shall acquire all of the Revolving Commitment and
outstanding Revolving Loans of, and the existing participations, if any, in L/C
Outstandings by, the Replaced Bank and, in connection therewith, shall pay to
(x) the Replaced Bank an amount equal to the sum of (A) an amount equal to the
principal of, and all accrued interest on, all outstanding Revolving Loans of
the Replaced Bank, (B) an amount, if any, equal to all Unpaid Drawings that have
been funded by (and not reimbursed to) such Replaced Bank, together with all
then unpaid interest with respect thereto at such time and (C) an amount equal
to all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant
to Section 3.01 and (y) Scotiabank an amount, if any, equal to such Replaced
Bank's Adjusted Percentage (prior to any adjustment thereto described in clause
(y) of the immediately succeeding sentence) of any Unpaid Drawing (which at such
time remains an Unpaid Drawing) to the extent such amount was not theretofore
funded by such Replaced Bank, and (II) all obligations of the Borrower owing to
the Replaced Bank (other than those specifically described in clause (I) above
in respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full by the Borrower to such Replaced Bank
concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (I) and
(II) above and, if so requested by the Replacement Bank, delivery of a Revolving
Note executed by the Borrower, (x) the Replacement Bank shall become a Bank
hereunder, the Replaced Bank shall cease to constitute a Bank hereunder, except
with respect to indemnification provisions under this Agreement, which shall
survive as to such Replaced Bank and (y) the Adjusted Percentages of the Banks
shall be automatically adjusted at such time to give effect to such replacement.
SECTION 2. Letters of Credit.
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2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request the Letter of Credit
Issuer at any time and from time to time on or after the Restatement Effective
Date and prior to the Maturity Date to issue, for the account of the Borrower
and in support of commercial and/or trade obligations incurred in the ordinary
course of business, insurance obligations, workers compensation, bonding
obligations in respect of taxes, licenses and similar requirements, support of
the Borrower's AFICA obligations and other obligations (including such other
obligations as specified in the respective Letter of Credit Request and
consented to by the Letter of Credit Issuer, such consent not to be unreasonably
withheld, it being understood that the Letter of Credit Issuer will notify the
Borrower of its withholding any such consent within 24 hours of its receipt of
the respective Letter of Credit Request) of the Borrower, Xtra and/or other
wholly-owned Subsidiaries of PXI, and subject to and upon the terms and
conditions herein set forth the Letter of Credit Issuer agrees to issue from
time to time, irrevocable letters of credit so requested by the Borrower in such
form as may be approved by the Letter of Credit Issuer in its sole discretion
(not to be unreasonably withheld) (each such letter of credit, together with
each Existing Letter of Credit, a "Letter of Credit" and collectively, the
"Letters of Credit").
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the L/C Outstandings at such
time would exceed either (x) $30,000,000 or (y) when added to the aggregate
principal amount of all Revolving Loans made by Non-Defaulting Banks and all
Swingline Loans then outstanding, the Adjusted Total Revolving Commitment at
such time (after giving effect to any reductions to the Adjusted Total Revolving
Commitment on such date); (ii) each Letter of Credit shall have an expiry date
occurring not later than one year after such Letter of Credit's date of issuance
(subject to extension provisions acceptable to the Administrative Agent and the
Letter of Credit Issuer, which acceptance is not to be unreasonably withheld, or
except as may be otherwise agreed by the Administrative Agent and the Letter of
Credit Issuer with respect to Letters of Credit issued in respect of the AFICA
Bonds) and in no event occurring later than the third Business Day preceding the
Maturity Date; (iii) each Letter of Credit shall be denominated in U.S. dollars;
(iv) no Letter of Credit shall have a Stated Amount of less than $50,000 unless
otherwise agreed to by the Letter of Credit Issuer; and (v) no Letter of Credit
shall be issued by the
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Letter of Credit Issuer after it has received a written notice from the
Borrower, either Agent or the Required Banks stating that a Default or Event of
Default has occurred and is continuing until such time as the Letter of Credit
Issuer shall have received a written notice of (i) rescission of such notice
from the party or parties originally delivering such notice or (ii) the waiver
of such Default or Event of Default by the Required Banks.
(c) Schedule II hereto contains a description of all letters of credit
issued under the Original Credit Agreement that are to be outstanding on, and to
continue in effect after, the Restatement Effective Date. Each such letter of
credit shall constitute a "Letter of Credit" for all purposes of this Agreement,
issued, for purposes of Section 2.02(a) on the Restatement Effective Date, and
the Borrower, the Letter of Credit Issuer, the Agents and the Banks hereby agree
that, from and after such date, the terms of this Agreement shall apply to such
Letters of Credit, superseding the Original Credit Agreement.
2.02 Letter of Credit Participations. (a) Immediately upon the
issuance by the Letter of Credit Issuer of any Letter of Credit, the Letter of
Credit Issuer shall be deemed to have sold and transferred to each other Bank
(each such other Bank, in its capacity under this Section 2.02, a "Participating
Bank"), and each such Participating Bank shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation, to the
extent of such Participating Bank's Adjusted Percentage, in such Letter of
Credit, each substitute letter of credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto, and any
security therefor or guaranty pertaining thereto (although L/C Fees will be paid
directly to the Administrative Agent for the ratable account of the
Participating Banks as provided in Section 3.01(b) and the Participating Banks
shall have no right to receive any portion of any Facing Fees). Upon any change
in the Revolving Commitments of the Banks pursuant to Section 1.14 or 12.04 or
upon the occurrence of a Bank Default, it is hereby agreed that, with respect to
all outstanding Letters of Credit and Unpaid Drawings, there shall be an
automatic adjustment to the participations pursuant to this Section 2.02 to
reflect the new Adjusted Percentages of the assignor and assignee Bank or of all
Non-Defaulting Banks, as the case may be.
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(b) In determining whether to pay under any Letter of Credit, the
Letter of Credit Issuer issuing same shall have no obligation relative to any
other Bank other than to confirm that any documents required to be delivered
under such Letter of Credit have been delivered and that they appear to comply
on their face with the requirements of such Letter of Credit. Any action taken
or omitted to be taken by the Letter of Credit Issuer under or in connection
with any Letter of Credit issued by it if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for the Letter of
Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), the Letter of Credit Issuer shall promptly notify the
Administrative Agent and after receipt of such notice, the Administrative Agent
will notify each Participating Bank of such failure, and each Participating Bank
shall promptly and unconditionally pay to the Administrative Agent for the
account of the Letter of Credit Issuer, the amount of such Participating Bank's
Adjusted Percentage of such unreimbursed payment in lawful money of the United
States of America and in same day funds, together with interest at the customary
rate set by the Letter of Credit Issuer for the correction of errors among banks
for each day during the period consisting of the first three days following such
date of notice and thereafter at the Base Rate; provided, however, that no
Participating Bank shall be obligated to pay to the Administrative Agent for the
account of the Letter of Credit Issuer its Adjusted Percentage of such
unreimbursed amount for any wrongful payment made by the Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the Letter of Credit Issuer so notifies, prior to 11:00 A.M. (New York time) on
any Business Day, any Participating Bank required to fund a payment under a
Letter of Credit, such Participating Bank shall make available to the
Administrative Agent for the account of the Letter of Credit Issuer such
Participating Bank's Adjusted Percentage of the amount of such payment on such
Business Day in same day funds. If and to the extent such Participating Bank
shall not have so made its Adjusted Percentage of the amount of such payment
available to the Administrative Agent for the account of the Letter of Credit
Issuer, such Participating Bank agrees to pay to the Administrative Agent for
the account of the Letter of Credit Issuer, forthwith on demand
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such amount, together with interest thereon, for each day from such date until
the date such amount is paid to the Administrative Agent for the account of such
Letter of Credit Issuer at the overnight Federal Funds Rate. The failure of any
Participating Bank to make available to the Administrative Agent for the account
of the Letter of Credit Issuer its Adjusted Percentage of any payment under any
Letter of Credit shall not relieve any other Participating Bank of its
obligation hereunder to make available to the Administrative Agent for the
account of the Letter of Credit Issuer its Adjusted Percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Participating Bank shall be responsible for the failure of any other
Participating Bank to make available to the Administrative Agent, such other
Participating Bank's Adjusted Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of the Letter of Credit Issuer any payments from the Participating
Banks pursuant to clause (c) above, the Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participating Bank which has paid its Adjusted Percentage thereof, in lawful
money of the United States of America and in same day funds, an amount equal to
such Participating Bank's Adjusted Percentage of the principal amount of such
reimbursement and of interest reimbursed thereon accruing from and after the
date of the purchase of the respective participations.
(e) The obligations of the Participating Banks to make payments to the
Administrative Agent for the account of the Letter of Credit Issuer with respect
to Letters of Credit shall be irrevocable and not subject to counterclaim,
set-off or other defense or any other qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower may have at any time against a beneficiary named in a Letter
of Credit, any transferee of any Letter of Credit (or any Person for whom
any such transferee may be acting), any Agent, the
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Letter of Credit Issuer, any Bank, or other Person, whether in connection
with this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying transaction
between the Borrower and the beneficiary named in any such Letter of
Credit);
(iii) any draft, certificate or any other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.03 Letter of Credit Requests; Notices of Issuance. (a) Whenever it
desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and the Letter of Credit Issuer written notice (including
by way of telecopier) thereof in substantially the form of Exhibit B hereto
prior to 1:00 P.M. (New York time) at least three Business Days (or such shorter
period as may be acceptable to the Letter of Credit Issuer) prior to the
proposed date (which shall be a Business Day) of issuance (each a "Letter of
Credit Request"), which Letter of Credit Request shall include an application
for the Letter of Credit and any other documents that such Letter of Credit
Issuer customarily requires in connection therewith. The Administrative Agent
shall promptly notify each Bank of each Letter of Credit Request.
(b) The delivery of each Letter of Credit Request shall be deemed a
representation and warranty by the Borrower that the Letter of Credit may be
issued in accordance with and will not violate the requirements of Section
2.01(b). The Letter of Credit Issuer shall, on the date of each issuance of a
Letter of Credit by it, give the Administrative Agent, each Bank and the
Borrower written notice of the issuance of such Letter of Credit, accompanied by
a copy to the Administrative Agent of the Letter of Credit or Letters of Credit
issued by it.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
hereby agrees to reimburse the Letter of
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Credit Issuer, by making payment to the Administrative Agent in U.S. dollars in
immediately available funds at the Payment Office, for any payment or
disbursement made by the Letter of Credit Issuer under any Letter of Credit
issued by it (each such amount so paid or disbursed until reimbursed, an "Unpaid
Drawing") immediately after, and in any event on the date of, notice from the
Letter of Credit Issuer of such payment or disbursement with interest on the
amount so paid or disbursed by the Letter of Credit Issuer, to the extent not
reimbursed prior to 1:00 P.M. (New York time) on the date of such payment or
disbursement, from and including the date paid or disbursed to but not including
the date the Letter of Credit Issuer is reimbursed therefor at a rate per annum
which shall be the Base Rate Margin plus the Base Rate as in effect from time to
time (plus an additional 2% per annum if not reimbursed by the third Business
Day after the date of notice of such payment or disbursement), such interest to
be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Letter of Credit Issuer, the
Administrative Agent, any Agent or any Bank, including, without limitation, any
defense based upon the failure of any drawing under a Letter of Credit to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; provided,
however, that the Borrower shall not be obligated to reimburse the Letter of
Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under
a Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
2.05 Increased Costs. If at any time after the Restatement Effective
Date, the adoption or effectiveness of any applicable law, rule or regulation,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or actual compliance by the
Letter of Credit Issuer or any Participating Bank with any request or directive
(whether or not having the force of law) by any such authority, central bank or
comparable agency shall either (i) impose, modify or make applicable any
reserve, deposit, capital adequacy or similar requirement against
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Letters of Credit issued by the Letter of Credit Issuer or such Participating
Bank's participation therein, or (ii) shall impose on the Letter of Credit
Issuer or any Participating Bank any other conditions affecting this Agreement,
any Letter of Credit or such Participating Bank's participation therein; and the
result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such Participating Bank of issuing, maintaining or participating in
any Letter of Credit, or to reduce the amount of any sum received or receivable
by the Letter of Credit Issuer or such Participating Bank hereunder (other than
any increased cost or reduction in the amount received or receivable resulting
from the imposition of or a change in the rate of taxes or similar charges),
then, upon demand to the Borrower by the Letter of Credit Issuer or such
Participating Bank (a copy of which notice shall be sent by the Letter of Credit
Issuer or such Participating Bank to the Administrative Agent), the Borrower
shall pay to the Letter of Credit Issuer or such Participating Bank such
additional amount or amounts as will compensate the Letter of Credit Issuer or
such Participating Bank for such increased cost or reduction. Each of the Letter
of Credit Issuer and each Participating Bank, in determining additional amounts
owing under this Section, will act reasonably and in good faith and will use
averaging and attribution methods which are reasonable, provided that such
Person's determination of such additional amounts so performed shall, absent
manifest error, be final and conclusive and binding on all parties hereto. A
certificate shall be submitted to the Borrower by the Letter of Credit Issuer or
such Participating Bank, as the case may be (a copy of which certificate shall
be sent by the Letter of Credit Issuer or such Participating Bank to the
Administrative Agent) setting forth the basis for the determination of such
additional amount or amounts necessary to compensate the Letter of Credit Issuer
or such Participating Bank as aforesaid, although the failure to deliver any
such certificate shall not release or diminish any of the Borrower's obligations
to pay additional amounts pursuant to this Section 2.05 upon receipt of such
certificate.
SECTION 3. Fees; Commitments.
3.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent
a commitment commission ("Commitment Commission") for the account of each
Non-Defaulting Bank for the period from and including the Restatement Effective
Date to but not including the date the Total Revolving Commitment has been
terminated, computed at a rate for each day equal to
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the then CC Percentage on the daily average of such Bank's Unutilized Revolving
Commitment. Such Commitment Commission shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter and on the date upon
which the Total Revolving Commitment is terminated.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of the Non-Defaulting Banks pro rata on the basis of their respective
Revolving Commitments, a fee in respect of each Letter of Credit (the "L/C Fee")
in an amount equal to the applicable Eurodollar Margin per annum on the average
daily Stated Amount of such Letter of Credit. Accrued L/C Fees shall be due and
payable quarterly in arrears on the last Business Day of each calendar quarter
and on the date upon which the Total Revolving Commitment shall be terminated.
(c) The Borrower agrees to pay to the Administrative Agent for the
account of the Letter of Credit Issuer a fee in respect of each Letter of Credit
issued by it (the "Facing Fee") computed at the rate of 1/8 of 1% per annum on
the average daily Stated Amount of such Letter of Credit. Accrued Facing Fees
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter and on the date upon which the Total Revolving Commitment shall
be terminated.
(d) The Borrower hereby agrees to pay to any Letter of Credit Issuer
upon each issuance of, drawing under and/or amendment of, a Letter of Credit
such amount as shall at the time of such issuance, drawing and/or amendment
equal the administrative charge which such Letter of Credit Issuer is
customarily charging at such time for issuances of, drawings under and/or
amendments of letters of credit issued by it other than with respect to standby
letters of credit issued by such Letter of Credit Issuer.
(e) The Borrower shall pay to the Administrative Agent (x) on the
Restatement Effective Date for its own account and/or for distribution to the
Agents and/or the Banks such fees as heretofore agreed by such Borrower and the
Agents and (y) for the account of the Agents, such other fees as may be agreed
to from time to time between the Borrower and the Agents, when and as due.
(f) All computations of Fees shall be made in accordance with Section
12.07(b).
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3.02 Voluntary Reduction of Commitments. Upon at least three Business
Days' prior written notice (or telephonic notice confirmed in writing) to the
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, without premium or penalty, to terminate the Total Unutilized Revolving
Commitment, in part or in whole, provided that (x) any such termination shall
apply to proportionately and permanently reduce the Revolving Commitment of each
of the Banks and (y) partial reduction pursuant to this sentence shall be in the
amount of at least $2,000,000.
3.03 Mandatory Reductions of Commitments, etc. (a) The Total Revolving
Commitment shall terminate on the Maturity Date.
(b) The Total Revolving Commitment shall be reduced:
(I) On the date that is ten Business Days after the date of receipt by
PXI or any of its Subsidiaries of the Cash Proceeds of any Asset Sale (other
than the Hialeah & Dadeland Transfer), by an amount equal to the Net Cash
Proceeds of such Asset Sale, provided the Total Revolving Commitment shall not
be so reduced as a result of any Asset Sale to the extent the Borrower elects,
as hereinafter provided, to cause such Net Cash Proceeds to be reinvested in
Reinvestment Assets (a "Reinvestment Election"). The Borrower may exercise its
Reinvestment Election with respect to an Asset Sale provided that (x) no Default
or Event of Default exists at the time of such Asset Sale and (y) the Borrower
delivers a Reinvestment Notice to the Administrative Agent no later than thirty
days after the end of the second and fourth fiscal quarters of each fiscal year
with respect to the Asset Sales occurring during the previous two or four fiscal
quarters respectively, with such Reinvestment Election being effective with
respect to the Net Cash Proceeds of such Asset Sales equal to the respective
Reinvestment Amounts specified in such Reinvestment Notice;
(II) On the date of the receipt by PXI or any of its Subsidiaries of
the proceeds of any incurrence of Indebtedness (other than Indebtedness
permitted by Section 8.03 as such Section is in effect on the Restatement
Effective Date), by an amount equal to the Net Debt Issuance Proceeds of such
incurrence;
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(III) On each date that is five Business Days after the date of the
receipt by PXI of proceeds from the issuance of equity, by an amount equal to
60% of the Net Equity Issuance Proceeds of any such issuance; and
(IV) (x) On the date of delivery of any Reinvestment Notice with
respect to an Asset Sale, by an amount equal to the difference between the Net
Cash Proceeds of such Asset Sale and the Reinvestment Amount specified in such
Reinvestment Notice with respect to such Asset Sale and (y) on the Reinvestment
Reduction Date with respect to an Asset Sale, by an amount equal to the
Reinvestment Reduction Amount, if any, for such Asset Sale.
(c) Each reduction of the Total Revolving Commitment pursuant to this
Section 3.03 shall apply proportionately to the Revolving Commitment of each
Bank.
SECTION 4. Payments.
4.01 Voluntary Prepayments. The Borrower shall have the right to
prepay Loans owing by it in whole or in part, without penalty or fee except as
otherwise provided in this Agreement, from time to time on the following terms
and conditions: (i) the Borrower shall give the Administrative Agent at the
Notice Office written notice (or telephonic notice promptly confirmed in
writing) of its intent to prepay Loans, whether such Loans are Revolving Loans
or Swingline Loans, the amount of such prepayment and (in the case of Eurodollar
Loans) the specific Borrowing(s) pursuant to which made, which notice shall be
given by the Borrower at least two Business Days prior to (or in the case of
Swingline Loans prior to 12:00 Noon (New York Time) on) the date of such
prepayment, which notice shall promptly be transmitted by the Administrative
Agent to each of the Banks (except in respect of Swingline Loans); (ii) each
partial prepayment of any Borrowing shall be in an aggregate principal amount of
at least $2,000,000 (or, in respect of a partial prepayment of any Borrowing of
Swingline Loans, in such lesser principal amount as may be satisfactory to
Scotiabank), provided that no partial prepayment of Eurodollar Loans shall
reduce the aggregate principal amount of Eurodollar Loans outstanding pursuant
to a Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto; and (iii) each prepayment in respect of any Loans made pursuant to a
Borrowing shall be applied pro rata among such Loans provided that at the
Borrower's election no portion of any voluntary prepayment shall be applied to
the Revolving Loans of a Defaulting Bank.
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4.02 Mandatory Prepayments.
(A) Requirements:
(a) If on any date the sum of the aggregate outstanding principal
amount of Revolving Loans made by Non-Defaulting Banks and Swingline Loans and
the aggregate amount of L/C Outstandings exceeds the Adjusted Total Revolving
Commitment as then in effect, the Borrower shall repay on such date the
principal of Swingline Loans (and, after Swingline Loans have been paid in full,
Revolving Loans of Non-Defaulting Banks) in an aggregate amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Swingline
Loans and Revolving Loans of Non-Defaulting Banks, the aggregate amount of L/C
Outstandings exceeds the Adjusted Total Revolving Commitment then in effect, the
Borrower shall pay to the Administrative Agent an amount in cash and/or Cash
Equivalents equal to such excess and the Administrative Agent shall hold such
payment as security for the obligations of the Borrower hereunder pursuant to a
cash collateral agreement to be entered into in form and substance satisfactory
to the Administrative Agent (which shall permit certain investments in Cash
Equivalents, until the proceeds are applied to the Obligations).
(b) If on any date the outstanding principal amount of Revolving Loans
made by a Defaulting Bank exceeds the Revolving Commitment of such Defaulting
Bank, the Borrower shall repay the Revolving Loans of such Defaulting Bank in an
amount equal to such excess.
(c) On the date of any equity contribution to the Borrower by PXI in
an amount equal to the principal amount of any PXI Subordinated Notes (which
equity contribution PXI agrees to make upon its receipt of the proceeds of any
PXI Subordinated Notes), the Borrower shall apply the proceeds of such equity
contribution to reduce the principal amount of then outstanding Revolving Loans
to the extent thereof (but such prepayment shall not reduce the Revolving
Commitment).
(B) Application:
(a) With respect to each repayment of Loans required by Section
4.02(A), the Borrower may designate the specific Borrowing(s) to be repaid,
provided that (i) each repayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans; (ii) if any repayment of Eurodollar Loans
made pursuant to a single Borrowing shall reduce the outstanding Loans made
pursuant to such Borrowing
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to an amount less than the Minimum Borrowing Amount for such Eurodollar Loans,
such Borrowing shall be immediately converted into Base Rate Loans; and (iii)
notwithstanding the provisions of the preceding clause (i), no repayment of
Revolving Loans pursuant to Section 4.02(A)(a) shall be applied to the Revolving
Loans of a Defaulting Bank. In the absence of a designation by any Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under Section 1.11.
4.03 Method and Place of Payment. Except as otherwise specifically
provided herein, all payments under this Agreement shall be made to the
Administrative Agent for the ratable account of the Banks entitled thereto, not
later than 1:00 P.M. (New York time) on the date when due and shall be made in
immediately available funds and in lawful money of the United States of America
at the Payment Office. Any payments under this Agreement which are made later
than 1:00 P.M. (New York time) shall be deemed to have been made on the next
succeeding Business Day. Whenever any payment to be made hereunder shall be
stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder,
under any Note or under any other Credit Document will be made without setoff,
counterclaim or other defense. All such payments will be made free and clear of,
and without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any jurisdiction or by any political subdivision or taxing
authority thereof or therein (but excluding, except as provided below, any tax
imposed on or measured by the net income of a Bank pursuant to the laws of the
jurisdiction in which the principal office or applicable lending office of such
Bank is located or under the laws of any political subdivision or taxing
authority of any such jurisdiction in which the principal office or applicable
lending office of such Bank is located) and all interest, penalties or similar
liabilities with respect thereto (collectively, "Taxes"). If any Taxes are so
levied or imposed, the Borrower agrees to pay the full amount of such Taxes, and
such additional amounts as may be necessary so that every payment of all
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amounts due from such Borrower hereunder, under any Note or under any other
Credit Document, after withholding or deduction for or on account of any Taxes,
will not be less than the amount provided for herein or in such Note. The
Borrower shall also reimburse each Bank, upon the written request of such Bank,
for taxes imposed on or measured by the net income of such Bank pursuant to the
laws of the jurisdiction in which the principal office or applicable lending
office of such Bank is located or of any political subdivision or taxing
authority of any such jurisdiction as such Bank shall determine are payable by
such Bank in respect of Taxes paid to or on behalf of such Bank pursuant to this
or the preceding sentence by the Borrower. The Borrower will furnish to the
Administrative Agent within five days after the date the payment of any Taxes,
or any withholding or deduction on account thereof, is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by such
Borrower. The Borrower will indemnify and hold harmless the Administrative Agent
and each Bank, and reimburse the Administrative Agent or such Bank upon its
written request, for the amount of any Taxes so levied or imposed and paid or
withheld by such Bank.
(b) Each Bank that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) for U.S. Federal income tax purposes
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the Restatement Effective Date, or in the case of a Bank that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.14 (unless
the respective Bank was already a Bank hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Bank, (i) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such Bank's
entitlement to a complete exemption from United States withholding tax with
respect to payments to be made under this Agreement, under any Note and under
any Credit Document, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit C (any such certificate, a "Section
4.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement, under
any Note and under any Credit Document. In addition, each Bank agrees that from
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time to time after the Restatement Effective Date, when a lapse in time or
change in circumstances renders the previous certification obsolete or
inaccurate in any material respect, it will deliver to the Borrower and the
Administrative Agent two new accurate and complete original signed copies of
Internal Revenue Service Form 4224 or 1001, or Form W-8 and a Section
4.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement, any Note and under any Credit
Document, or it shall immediately notify the Borrower and the Administrative
Agent of its inability to deliver any such Form or Certificate, in which case
such Bank shall not be required to deliver any such Form or Certificate pursuant
to this Section 4.04(b). Notwithstanding anything to the contrary contained in
Section 4.04(a), but subject to the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
Fees or other amounts payable hereunder for the account of any Bank which is not
a United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Bank in respect of income or similar taxes imposed by the United
States if (I) such Bank has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that such Forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(a), the Borrower agrees to pay any
additional amounts and to indemnify each Bank in the manner set forth in Section
4.04(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes after
the Restatement Effective Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes.
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SECTION 5. Conditions Precedent.
5.01 Conditions Precedent to Restatement Effective Date. This
Agreement shall become effective on the date (the "Restatement Effective Date")
when each of the following conditions are first satisfied:
(a) Effectiveness; Notes. On or prior to the Restatement Effective
Date (i) the Borrower and each of the Banks shall have signed a copy of this
Agreement (whether the same or different copies) and shall have delivered the
same to the Administrative Agent at its Notice Office or, in the case of the
Banks, shall have given to the Administrative Agent telephonic (confirmed in
writing), written, telex or facsimile transmitted notice (actually received) at
its Notice Office that the same has been signed and mailed to it and (ii) there
shall have been delivered to the Administrative Agent for the account of each
Bank the appropriate Note or Notes executed by the Borrower, in each case, in
the amount, maturity and as otherwise provided herein.
(b) Opinions of Counsel. On the Restatement Effective Date, the
Administrative Agent shall have received opinions, addressed to the Agents and
each of the Banks and dated the Restatement Effective Date, from (i) Milbank,
Tweed, Xxxxxx & XxXxxx, counsel to the Credit Parties in the form of Exhibit D-1
hereto, which opinion shall cover such other matters incident to the
transactions contemplated herein as the Agents may reasonably request, (ii)
Fiddler, Xxxxxxxx & Xxxxxxxxx, which opinion shall cover enforceability,
validity and binding effect of certain Security Documents, the perfection and
priority of the security interests granted pursuant to certain Security
Documents, the applicability of Puerto Rican withholding taxes to the
transactions contemplated herein and such other matters incident to the
transactions contemplated herein or therein, as the Agents may reasonably
request and shall be in form and substance satisfactory to the Agents and (iii)
White & Case, special counsel to the Banks, in the form of Exhibit D-2 hereto.
(c) Corporate Proceedings. (i) On the Restatement Effective Date, the
Agents shall have received from each Credit Party a certificate, dated the
Reinstatement Effective Date, signed by an Authorized Officer of each Credit
Party in the form of Exhibit C hereto with appropriate insertions and deletions,
together with (x) copies of the articles of
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incorporation and the by-laws (or other organizational documents) of each Credit
Party, (y) the resolutions of each Credit Party which shall be satisfactory to
the Agents and (z) a statement that all of the applicable conditions set forth
in Sections 5.01(g), (m), (n) and (o) and 5.02 exist as of such date.
(ii) On the Restatement Effective Date, all corporate and legal
proceedings and all instruments and agreements in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Agents and the Agents shall have
received all information and copies of all certificates and any other records of
corporate proceedings and governmental approvals, if any, which the Agents may
have requested in connection therewith, such records, where appropriate, to be
certified by proper corporate or governmental authorities.
(d) Original Credit Agreement. On the Restatement Effective Date and
concurrently with the initial borrowing hereunder, the Borrower and Xtra shall
have (i) repaid in full the outstanding principal amount of all Loans under and
as defined in the Original Credit Agreement, (ii) terminated all letters of
credit issued thereunder (other than Existing Letters of Credit) and (iii) paid
all accrued but unpaid interest and fees under the Original Credit Agreement,
whether or not otherwise then due and payable.
(e) Issuance of PXI Senior Notes. On or prior to the Restatement
Effective Date, (i) PXI shall have consummated the issuance of the Additional
PXI Senior Notes and received net cash proceeds therefrom (after the payment of
fees and expenses in connection therewith) in an aggregate amount of at least
$73,000,000, and (ii) the Agents and the Banks shall have received copies of the
Additional PXI Senior Note Documents certified as true and correct by PXI in a
certificate signed by an Authorized Officer, and the PXI Senior Note Documents
shall be in full force and effect and the terms and conditions thereof shall be
substantially identical to the Existing PXI Senior Notes Documents and otherwise
shall be in form and substance satisfactory to the Agents and the Required
Banks. All of the proceeds of the Additional PXI Senior Notes shall have been
contributed to the Borrower and used to repay outstandings under the Original
Credit Agreement.
(f) Pledge Agreements. (i) On the Restatement Effective Date, PXI
shall have duly authorized, executed and
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delivered an amended and restated Pledge Agreement substantially in the form of
Exhibit E-1, together with such changes (or with such other documents) as may be
requested by the Collateral Agent in connection with local law (each as
modified, supplemented, amended or restated from time to time, a "PXI Pledge
Agreement") and shall have delivered to the Collateral Agent, as Pledgee, all
the Pledged Securities referred to therein (including the Subordinated
Intercompany Real Estate Note and Subordinated Intercompany Notes, each of which
shall have been endorsed in favor of the Collateral Agent, and all shares of
capital stock) then owned by PXI, (x) endorsed in blank in the case of
promissory notes (except as set forth above) and (y) together with executed and
undated stock powers, in the case of capital stock.
(ii) On the Restatement Effective Date, the Borrower shall have duly
authorized, executed and delivered an amended and restated Pledge Agreement
substantially in the form of Exhibit E-2 (as modified, supplemented, amended or
restated from time to time, the "Borrower Pledge Agreement") and shall have
delivered to the Collateral Agent, as Pledgee, all the Pledged Securities
referred to therein then owned by the Borrower, (x) endorsed in blank in the
case of promissory notes and (y) together with executed and undated stock
powers, in the case of capital stock.
(iii) On the Restatement Effective Date, Xtra shall have duly
authorized, executed and delivered an amended and restated Pledge Agreement
substantially in the form of Exhibit E-3 (as modified, supplemented, amended or
restated from time to time, the "Xtra Pledge Agreement") and shall have
delivered to the Collateral Agent, as Pledgee, all of the Pledged Securities
referred to therein then owned by Xtra (x) endorsed in blank in the case of
promissory notes and (y) together with executed and undated stock powers, in the
case of capital stock.
(iv) On the Restatement Effective Date, Xtra Merger Corporation shall
have duly authorized, executed and delivered an amended and restated Pledge
Agreement substantially in the form of Exhibit E-4 (as modified, supplemented,
amended or restated from time to time, the "XM Pledge Agreement") and shall have
delivered to the Collateral Agent, as Pledgee, all of the Pledged Securities
referred to therein then owned by Xtra Merger Corporation (x) endorsed in blank
in the case of promissory notes and (y) together with executed and undated stock
powers, in the case of capital stock.
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(g) Subsidiary Guaranty. On the Restatement Effective Date, each
Subsidiary of PXI (other than the Borrower, Xtra and Caribad, Inc.) shall have
duly authorized, executed and delivered an amended and restated Guaranty in the
form of Exhibit F (as modified, supplemented or amended from time to time, the
"Subsidiary Guaranty").
(h) Security Agreements. On the Restatement Effective Date, (i) the
Borrower shall have duly authorized, executed and delivered an amended and
restated Security Agreement substantially in the form of Exhibit G-1, together
with such changes (or with such other documents) as may be requested by the
Collateral Agent in connection with local law (each, as modified, supplemented
or amended from time to time, the "Borrower Security Agreement") covering all of
the Borrower's respective present and future Security Agreement Collateral and
(ii) Xtra and each Subsidiary Guarantor shall have duly authorized, executed and
delivered the Security Agreement substantially in the form of Exhibit G-2,
together with such changes (or with such other documents) as may be requested by
the Collateral Agent in connection with local law (each, as modified,
supplemented or amended from time to time, the "Subsidiary Security Agreement")
covering all of each Subsidiary's respective present and future Security
Agreement Collateral, together in each case with:
(A) executed copies of Financing Statements (Forms UCC-1 or
UCC-3) or appropriate local equivalent in appropriate form for filing
under the UCC or appropriate local equivalent of each jurisdiction as
may be necessary to perfect or maintain the security interests
purported to be created by the Security Agreements and capable of
being perfected by the filing of such Financing Statements or
appropriate local equivalent;
(B) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, each of recent date listing all
effective financing statements that name PXI, the Borrower or, Xtra as
debtor and that are filed in the jurisdictions referred to in clause
(A), together with copies of such financing statements (none of which
shall cover the Collateral except (x) those with respect to which
appropriate termination statements executed by the secured lender
thereunder have been delivered to the Administrative Agent and (y) to
the extent evidencing Permitted Liens);
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(C) evidence of the completion of all other recordings and
filings of, or with respect to, the Security Agreements as may be
necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interests intended to be created by the Security
Agreements; and
(D) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreements have been taken.
(i) Mortgages; Intercompany Mortgages; Title Insurance; Surveys; Etc.
(i) On the Restatement Effective Date, the Collateral Agent shall have
received fully executed counterparts of amendments to the Mortgages in form
and substance satisfactory to the Collateral Agent, and arrangements
reasonably satisfactory to the Collateral Agent shall be in place to
provide that counterparts of such amendments shall be recorded on the
Restatement Effective Date or within one Business Day thereof in all places
to the extent necessary or desirable, in the judgment of the Collateral
Agent, effectively to maintain a valid and enforceable first priority Lien,
subject only to Permitted Encumbrances, on each Mortgaged Property in favor
of the Collateral Agent for the benefit of the Secured Parties.
(ii) On the Restatement Effective Date, (A) the Collateral Agent shall
have received certified copies of fully executed counterparts of amendments
to (x) deeds of trust, leasehold deeds of trust, mortgages, leasehold
mortgages and similar documents in each case in form and substance
satisfactory to the Collateral Agent (each an "Intercompany Mortgage" and
collectively the "Intercompany Mortgages") and covering all of the PRMP,
(y) one or more amendments to chattel mortgages covering the Borrower's
personal property located in Puerto Rico and (z) amendments to other
Security Documents with respect to personal property of the Borrower
located in Puerto Rico, and arrangements reasonably satisfactory to the
Collateral Agent shall be in place to provide that counterparts of such
amendments shall be presented for recording on the Restatement Effective
Date or within one Business Day thereof in all places to the extent
necessary or desirable, in the judgment of the Collateral Agent,
effectively to maintain a valid and
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enforceable first priority Lien, subject only to Permitted Encumbrances, on
each such PRMP and such personal property and (B) PXI and the Borrower
shall have executed an amendment to pledge agreement (the "Puerto Rico
Pledge Agreement") and the Borrower shall have delivered to the Collateral
Agent the Mortgage Notes (as defined in the Puerto Rico Pledge Agreement)
in respect of such Intercompany Mortgages and chattel mortgages.
(iii) The Collateral Agent shall have received updated ALTA mortgagee
title insurance policies or the equivalent thereof (or binding commitments
to issue such title insurance policies) issued by title insurers
satisfactory to the Collateral Agent (the "Mortgage Policies") in amounts
satisfactory to the Collateral Agent and assuring the Collateral Agent that
the Mortgages and Intercompany Mortgages are valid and enforceable first
priority mortgage Liens on the respective Mortgaged Properties, free and
clear of all defects and encumbrances except Permitted Encumbrances. Such
Mortgage Policies shall be in form and substance satisfactory to the
Collateral Agent and shall include an endorsement for future advances (to
the extent available in the respective jurisdiction of each Mortgaged
Property) under this Agreement, the Notes and the Mortgages and
Intercompany Mortgages, for mechanics' liens (to the extent available in
the respective jurisdiction of each Mortgaged Property) and for any other
matter that the Collateral Agent in its discretion may reasonably request
prior to the Restatement Effective Date, and shall provide for affirmative
insurance and such reinsurance (including direct access agreements) as the
Collateral Agent in its discretion may request prior to the Restatement
Effective Date.
(j) Solvency Certificate. On the Restatement Effective Date, the
Agents shall have received from the President and Chief Executive Officer of
PXI, acting on behalf of PXI, a certificate in the form of Exhibit H hereto,
expressing opinions of value and other appropriate facts or information
regarding the solvency of PXI and its Subsidiaries taken as a whole and of the
Borrower.
(k) Insurance Policies. On the Restatement Effective Date, the Agents
shall have received evidence of insurance complying with the requirements of
Section 7.09 for the business and properties of PXI and its Subsidiaries, in
form and substance satisfactory to the Agents and, with
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respect to all casualty insurance, naming the Collateral Agent on behalf of the
Secured Parties, as mortgagee/secured party and loss payee.
(l) Consent Letter. On the Restatement Effective Date, the
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, in the form of Exhibit I
indicating its consent to its appointment by each Credit Party as their agent to
receive service of process.
(m) Payment of Fees. On or prior to the Restatement Effective Date,
all costs, fees and expenses, and all other compensation contemplated by this
Agreement, due to the Agents or the Banks (including, without limitation, legal
fees and expenses) shall have been paid by the Borrower to the extent due.
(n) Adverse Change. From January 25, 1997 to the Restatement Effective
Date, nothing shall have occurred which the Required Banks or either Agent shall
determine has, or is reasonably likely to have, a material adverse effect on the
rights or remedies of the Banks, or the Agents, or on the ability of any Credit
Party to perform its obligations to the Banks or the Agents under this Agreement
or any other Credit Document.
(o) Litigation. No litigation by any entity (private or governmental)
shall be pending or threatened on the Restatement Effective Date (a) with
respect to this Agreement or any other Credit Document or (b) which either Agent
or the Required Banks shall determine could reasonably be expected to have a
Material Adverse Effect.
(p) Depositary Account Agreement. On the Restatement Effective Date,
the Borrower shall have duly authorized, executed and delivered a Depositary
Account Agreement substantially in the form of Exhibit L hereto.
5.02 Conditions Precedent to All Credit Events. The obligation of each
Bank to make any Loans and the obligation of the Letter of Credit Issuer to
issue any Letter of Credit is subject, at the time of each such Credit Event
(including Credit Events occurring on the Restatement Effective Date) to the
satisfaction of the following conditions at such time:
(a) At the time of each Credit Event and also after giving effect
thereto (i) there shall exist no Default
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or Event of Default and (ii) all representations and warranties contained herein
or in the other Credit Documents in effect at such time shall be true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date of such
Credit Event (except to the extent any representation or warranty is expressly
made as of a specific date, in which case such representation and warranty shall
be true and correct in all material respects as of such date).
(b) The Administrative Agent shall have received a Notice of Borrowing
with respect to such Borrowing of Loans meeting the requirements of Section 1.02
or a Letter of Credit Request for such issuance of a Letter of Credit meeting
the requirements of Section 2.03, as the case may be.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by each Credit Party to each of the Banks that all
of the applicable conditions specified in this Section 5 are then satisfied. All
of the certificates, legal opinions and other documents and papers referred to
in this Section 5, unless otherwise specified, shall be delivered to the
Administrative Agent at its Notice Office for the account of each of the Banks
and, except for the Notes, in sufficient counterparts or copies for each of the
Banks and shall be satisfactory in form and substance to the Agents.
SECTION 6. Representations, Warranties and Agreements. In order to
induce the Banks to enter into this Agreement and the Banks to make the Loans
and participate in Letters of Credit and the Letter of Credit Issuer to issue
Letters of Credit as provided for herein, each of PXI, the Borrower or Xtra make
the following representations and warranties to, and agreements with, the Banks
and the Letter of Credit Issuer, all of which shall survive the execution and
delivery of this Agreement and the making of the Loans and the issuance of
Letters of Credit (with the occurrence of each Credit Event being deemed to
constitute a representation and warranty that the matters specified in this
Section 6 are true and correct in all material respects on and as of the date
hereof and as of the date of each such Credit Event, except to the extent that
any representation or warranty is expressly made as of a specific date, in which
case such representation or warranty shall be true and correct in all material
respects as of such specific date):
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6.01 Corporate Status. Each of the Credit Parties (i) is a duly
organized and validly existing corporation in good standing under the laws of
the jurisdiction of its organization and has the corporate power and authority
to own its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (ii) has duly qualified and is
authorized to do business and is in good standing in all jurisdictions where it
is required to be so qualified and where the failure to be so qualified is
reasonably likely to have a Material Adverse Effect.
6.02 Corporate Power and Authority. Each Credit Party has the
corporate power and authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Credit Documents to which it is a party. Each Credit Party has duly
executed and delivered each Credit Document to which it is a party and each such
Credit Document constitutes the legal, valid and binding obligation of such
Credit Party enforceable in accordance with its terms.
6.03 No Violation. Neither the execution, delivery and performance by
any Credit Party of the Credit Documents to which it is a party nor compliance
with the terms and provisions thereof, nor the consummation of the transactions
contemplated therein (i) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of any Credit Party pursuant to the terms of any indenture,
mortgage, deed of trust, agreement or other instrument to which any Credit Party
is a party or by which it or any of its property or assets are bound or to which
it may be subject, including without limitation any Permitted Existing
Indebtedness Agreements but excluding any agreements in respect of pre-existing
indebtedness that is being refinanced on the Restatement Effective Date, or
(iii) will violate any provision of the Certificate of Incorporation or ByLaws
of any Credit Party.
6.04 Litigation. There are no actions, suits or proceedings pending or
threatened with respect to any Credit Party (i) that are likely to have a
Material Adverse Effect or (ii) that could have a material adverse effect on the
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rights or remedies of the Administrative Agent or the Banks or on the ability of
any Credit Party to perform its obligations to them hereunder and under the
other Credit Documents to which it is, or will be, a party.
6.05 Use of Proceeds. (a) The proceeds of all Revolving Loans incurred
on the Restatement Effective Date shall be utilized to repay Loans under and as
defined in the Original Credit Agreement.
(b) The proceeds of Revolving Loans incurred after the Restatement
Effective Date and also Swingline Loans shall be utilized for general corporate
purposes of the Borrower and its Subsidiaries.
(c) No part of the proceeds of any Loan will be used to purchase or
carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock.
6.06 Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with
(other than UCC and other "security interest perfection" filings and/or mortgage
recordings contemplated by this Agreement in respect of the Collateral), or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Credit
Document or (ii) the legality, validity, binding effect or enforceability of any
Credit Document.
6.07 Investment Company Act. No Credit Party is an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
6.08 Public Utility Holding Company Act. No Credit Party is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
6.09 True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of any Credit
Party in writing to either Agent or any Bank for purposes of or in connection
with this Agreement or any transaction contemplated
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herein is, and all other such factual information (taken as a whole) hereafter
furnished by or on behalf of any Credit Party in writing to any Bank will be,
true and accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole) not
misleading at such time in light of the circumstances under which such
information was provided. The projections and pro forma financial information
contained in such materials are based on good faith estimates and assumptions
believed by the Credit Parties to be reasonable at the time made, it being
recognized by the Banks that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results in any material
respect. There is no fact known to any Credit Party which has, or is reasonably
likely to have, a Material Adverse Effect which has not been disclosed herein or
in such other documents, certificates and statements furnished to the Banks for
use in connection with the transactions contemplated hereby.
6.10 Financial Condition; Financial Statements. (a) On and as of the
Restatement Effective Date on a pro forma basis after giving effect to the
Refinancing and all Indebtedness incurred, and to be incurred, and Liens created
and to be created, by each Credit Party in connection therewith, with respect to
each of PXI and its Subsidiaries taken as a whole, and of the Borrower (x) the
sum of its or their assets, at a fair valuation, will exceed its or their debts,
(y) it or they will not have incurred nor intended to, or believes that it or
they will not, incur debts beyond its or their ability to pay such debts as such
debts mature during the period prior to the Maturity Date and (z) it and they
will have sufficient capital with which to conduct its or their businesses. For
purposes of this Section 6.10(a), "debt" means any liability on a claim, and
"claim" means (i) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (ii) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
(b) The consolidated and consolidating balance sheets of PXI and its
Subsidiaries at January 25, 1997, January 26, 1996 and January 27, 1995 and the
related con-
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solidated and consolidating statements of income and (in consolidated form only)
cash flows of PXI and its Subsidiaries for the fiscal years ended as of said
dates, which have been examined by Deloitte & Touche, independent certified
public accountants, and the unaudited pro forma (after giving effect to the
Refinancing) balance sheet of PXI and its Subsidiaries as at January 25, 1997,
copies of which have heretofore been furnished to each Bank, present fairly in
all material respects the consolidated and consolidating financial position of
PXI and its Subsidiaries at the dates of said statements and the consolidated
and consolidating income and cash flows for the periods covered thereby (or, in
the case of the pro forma consolidated balance sheet, present a good faith
estimate of the consolidated pro forma financial condition of PXI and its
Subsidiaries at the date thereof). All such financial statements (other than the
aforesaid pro forma balance sheet) have been prepared in accordance with GAAP
and practices consistently applied except to the extent provided in the notes to
said financial statements.
(c) There has been no material adverse change in the business,
property, assets, liabilities, condition (financial or otherwise) or prospects
of PXI and its Subsidiaries taken as a whole since January 25, 1997.
(d) Except as fully reflected in the pro forma financial statements,
and in the audited financial statements for the fiscal year ended January 25,
1997, described in Section 6.10(b), there were as of the Restatement Effective
Date (and after giving effect to any Loans made on such date), no liabilities or
obligations (excluding current obligations incurred in the ordinary course of
business) with respect to PXI or any of its Subsidiaries of any nature
whatsoever (whether absolute, accrued, contingent or otherwise and whether or
not due), and PXI does not know of any basis for the assertion against PXI or
any of its Subsidiaries of any such liability or obligation which, either
individually or in aggregate, are or would be reasonably likely to be material
to PXI and its Subsidiaries taken as a whole.
6.11 Security Interests. On and after the Restatement Effective Date,
each of the Security Documents creates, as security for the Obligations, a valid
and enforceable perfected security interest in and Lien on all of the
Collateral, superior to and prior to the rights of all third persons and subject
to no other Liens (except (i) that the Security Agreement Collateral may be
subject to the security interests evidenced by Permitted Liens relating
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thereto and (ii) the Mortgaged Properties may be subject to Permitted
Encumbrances relating thereto), in favor of the Collateral Agent for the benefit
of the respective Secured Parties. No filings or recordings are required in
order to perfect the security interests created under any Security Document
except for filings or recordings required in connection with any such Security
Document which shall have been made, or provided for as contemplated by Sections
5.01(i), on or prior to the Restatement Effective Date.
6.12 Tax Returns and Payments. Each Credit Party filed all federal
income tax returns and all other material tax returns, domestic and foreign,
required to be filed by it and has paid all material taxes and assessments
payable by it which have become due, other than those not yet delinquent and
except for those contested in good faith. Holdings, PXI and each of its
Subsidiaries has paid, or has provided adequate reserves (in accordance with
GAAP) for the payment of, all federal, state and foreign income taxes applicable
for all prior fiscal years and for the current fiscal year to the date hereof.
There is no material action, suit, proceeding, investigation, audit, or claim
now pending or, to the knowledge of the Borrower or any of its subsidiaries,
threatened by any authority regarding any taxes relating to the Borrower or any
of its subsidiaries. Neither the Borrower nor any of its subsidiaries has
entered into an agreement or waiver or been requested to enter into an
agreement or waiver extending any statute of limitations relating to the payment
or collection of taxes of the Borrower or any of its subsidiaries.
6.13 Compliance with ERISA. Each Plan is in compliance with its terms
and with ERISA and the Code; each Plan (and each related trust, if any), which
is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Section 401(a) and 501(a) of the Code; no Reportable
Event has occurred with respect to a Plan other than as set forth in Schedule
IV; no Plan is insolvent or in reorganization; no Plan has an Unfunded Current
Liability in excess of $2,500,000 and the aggregate Unfunded Current Liabilities
for all Plans does not exceed $2,500,000; no Plan has an accumulated or waived
funding deficiency or permitted decreases in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Code or Section 303 or 304 of ERISA; all contributions
required to be made with respect to a Plan have been timely made; no Credit
Party nor any of its ERISA Affiliates has
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incurred any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code, or expects to incur any liability
under any of the foregoing Sections with respect to any Plan; no proceedings
have been instituted to terminate or appoint a trustee to administer any Plan;
no condition exists which presents a risk to any Credit Party or any ERISA
Affiliate of incurring a liability to or on account of a plan pursuant to the
foregoing provisions of ERISA and the Code; no action, suit, proceeding,
hearing, audit or investigation with respect to the administration, operation or
the investment of assets of any Plan (other than routine claims for benefits) is
pending, expected or threatened; except to the extent any breach of the
representations set forth above in Section 6.13 (except where specific standards
have established) could not have a Material Adverse Effect. Using actuarial
assumptions and computation methods consistent with Part 1 of subtitle E of
Title IV of ERISA, the aggregate liabilities of all Credit Parties and their
ERISA Affiliates to all Plans which are multiemployer plans (as defined in
Section 4001(a)(3) of ERISA) in the event of a complete withdrawal therefrom, as
of the close of the most recent fiscal year of each such Plan ended prior to the
date of the most recent Credit Event would not exceed $1,000,000. Each group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) which covers or has covered employees or former employees of any Credit
Party or any ERISA Affiliate has at all times been operated in compliance with
the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of
the Code. No lien imposed under the Code or ERISA on the assets of any Credit
Party or any ERISA Affiliate exists or is likely to arise on account of any Plan
which would violate Section 8.02 and all Credit Parties and their Subsidiaries
do not maintain or contribute to any employee welfare benefit plan (as defined
in Section 3(1) of ERISA) which provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA) the
obligations with respect to which could reasonably be expected to have a
Material Adverse Effect.
6.14 Subsidiaries. Schedule V hereto lists each Subsidiary of PXI, and
the direct and indirect ownership interest of PXI therein, in each case as of
the Restatement Effective Date.
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6.15 Patents, etc. PXI and each of its Subsidiaries owns or holds a
valid license to use all material patents, trademarks, servicemarks, trade
names, copyrights, licenses and other rights, that are necessary for, and no
restriction applicable to any such patent, trademark, servicemark, trade name,
copyright, license or other right would interfere in any material respect with,
the operation of their businesses taken as a whole as presently conducted and as
proposed to be conducted.
6.16 Compliance with Statutes. etc. (a) Each Credit Party is in
compliance with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all governmental bodies, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property (including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls), except such noncompliance as
is not likely to, in the aggregate, have a Material Adverse Effect.
(b) Each Credit Party is in compliance with all applicable
Environmental Laws governing its business for which failure to comply is likely
to have a Material Adverse Effect, and no Credit Party is liable for any
material penalties, fines or forfeitures for failure to comply with any of the
foregoing in the manner set forth above. All licenses, permits, registrations or
approvals required for the business of any Credit Party, as conducted as of the
Restatement Effective Date, under any Environmental Law have been secured and
each Credit Party is in substantial compliance therewith, except such licenses,
permits, registrations or approvals the failure to secure or to comply therewith
is not likely to have a Material Adverse Effect. No Credit Party is in any
respect in noncompliance with, breach of or default under any applicable writ,
order, judgment, injunction, or decree to which such Credit Party is a party or
which would affect the ability of such Credit Party to operate any Real Property
and no event has occurred and is continuing which, with the passage of time or
the giving of notice or both, would constitute noncompliance, breach of or
default thereunder, except in each such case, such noncompliance, breaches or
defaults as are not likely to, in the aggregate, have a Material Adverse Effect.
There are as of the Restatement Effective Date no Environmental Claims pending
or, to the best knowledge of any Credit Party, threatened, which (a) question
the validity, term or entitlement of such Credit Party for any permit, license,
order or registration required for the operation of any facility which such
Credit Party currently operates and (b) wherein an unfavorable decision, ruling
or
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finding would be reasonably likely to have a Material Adverse Effect. There are
no facts, circumstances, conditions or occurrences on any Real Property or, to
the knowledge of any Credit Party, on any property adjacent to any such Real
Property that could reasonably be expected (i) result in an Environmental Claim
against such Credit Party or any Real Property of such Credit Party, or (ii) to
cause such Real Property to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Property under any Environmental
Law, except in each such case, such Environmental Claims or restrictions that
individually or in the aggregate are not reasonably likely to have a Material
Adverse Effect.
(c) Hazardous Materials have not at any time been (i) generated, used,
treated or stored on, or transported to or from, any Real Property of any Credit
Party or (ii) Released on any Real Property, in each case where such occurrence
or event is reasonably likely to have a Material Adverse Effect.
6.17 Properties. Except as set forth in Schedule VI, each Credit Party
has good and legal title to all properties owned by it and valid and subsisting
leasehold interests in all properties leased by it, in each case, including all
property reflected in the financial statements referred to in Section 6.10(b)
(except as sold or otherwise disposed of since the date of the January 27, 1997
financial statements in the ordinary course of business) free and clear of all
Liens, other than Liens permitted by Section 8.02. Schedule VI contains a true
and complete list of each Real Property owned and each Real Property leased by
any Credit Party on the Restatement Effective Date and the type of interest
therein held by such Credit Party.
6.18 Labor Relations; Collective Barqaining Agreements. (a) Set forth
on Schedule VII hereto is a list and description (including dates of
termination) of all collective bargaining agreements between or applicable to
any Credit Party and any union, labor organization or other bargaining agent in
respect of the employees of any Credit Party on the Restatement Effective Date.
(b) No Credit Party is engaged in any unfair labor practice that is
reasonably likely to have a Material Adverse Effect. There is (i) no significant
unfair labor practice complaint pending against any Credit Party or, to the best
knowledge of any Credit Party, threatened against it, before the National Labor
Relations Board, and no significant griev-
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ance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is now pending against any Credit Party or, to
the best knowledge of any Credit Party, threatened against it, (ii) no
significant strike, labor dispute, slowdown or stoppage is pending against any
Credit Party or, to the best knowledge of any Credit Party, threatened against
it and (iii) to the best knowledge of each Credit Party, no union representation
question exists with respect to the employees of such Credit Party, except (with
respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as is not reasonably likely to have a
Material Adverse Effect.
6.19 Indebtedness. Schedule VIII sets forth a true and complete list
of (x) all Indebtedness (other than intercompany indebtedness) of PXI and each
of its Subsidiaries outstanding as of the Restatement Effective Date and which
is to remain outstanding after the Restatement Effective Date and (y) all
agreements existing on the Restatement Effective Date and which are to remain
outstanding after the Restatement Effective Date pursuant to which PXI or any of
its Subsidiaries is entitled to incur Indebtedness (other than intercompany
indebtedness) (whether or not any condition to such incurrence could be met)
(collectively, as in effect and outstanding on the Restatement Effective Date
and without giving effect to any extension, renewal or refinancing thereof, the
"Permitted Existing Indebtedness"), in each case showing the aggregate principal
amount thereof and the name of the respective borrower and any other entity
which directly or indirectly guaranteed such debt.
6.20 Restrictions on Subsidiaries. Except for restrictions contained
in the Credit Documents and the PXI Senior Note Documents, as of the Restatement
Effective Date there are no contractual or consensual restrictions on any Credit
Party which prohibit or otherwise restrict (i) the transfer of cash or other
assets (x) between PXI and any of its Subsidiaries or (y) between any
Subsidiaries of PXI or (ii) the ability of any Credit Party or any of its
Subsidiaries to grant security interests to the Banks in their respective
assets.
6.21 PXI Senior Notes, etc. As of the Restatement Effective Date, the
PXI Senior Notes have been duly authorized, issued and delivered in accordance
with applicable law.
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SECTION 7. Affirmative Covenants. PXI, the Borrower and Xtra covenant
and agree that on the Restatement Effective Date and thereafter for so long as
this Agreement is in effect and until the Revolving Commitments have terminated,
no Letters of Credit are outstanding and the Loans, Unpaid Drawings together
with interest, Fees and all other Obligations (other than any indemnities
described in Section 12.13 hereof which are not then due and payable) incurred
hereunder are paid in full:
7.01 Information Covenants. PXI and the Borrower will furnish to each
Bank:
(a) Annual Financial Statements. Within 90 days after the close of
each fiscal year of PXI, the consolidated and consolidating balance sheets of
PXI and its Subsidiaries, as at the end of such fiscal year and the related
statements of income and cash flows (other than consolidating annual statements
of cash flows) for such fiscal year, setting forth comparative figures for the
preceding fiscal year, and in the case of such consolidated statements examined
by Coopers & Xxxxxxx (or other independent certified public accountants of
recognized National standing acceptable to the Required Banks) whose opinion
shall not be qualified as to the scope of audit and as to the status of PXI or
any of its Subsidiaries as a going concern, together, in each case, with a
certificate of the accounting firm referred to above stating that in the course
of its regular audit of the business of PXI and its Subsidiaries, which audit
was conducted in accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any payment default or Default or
Event of Default under any of Sections 8.09, 8.10 and 8.11 which has occurred
and is continuing or, if in the opinion of such accounting firm such a Default
or Event of Default has occurred and is continuing, a statement as to the nature
thereof.
(b) Quarterly Financial Statements. As soon as available and in any
event within 45 days after the close of each of the first three quarterly
accounting periods in each fiscal year of PXI, the consolidated and
consolidating balance sheets of PXI and its Subsidiaries, as at the end of such
quarterly period and the related statements of income and cash flows (other than
consolidating quarterly statements of cash flows) for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, and setting forth commencing with the quarterly statements for
the period ended in May 1997, comparative figures for the related periods in the
prior fiscal
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year, in each case, certified by PXI in a certificate signed by an Authorized
Officer, subject to changes resulting from audit and normal year-end audit
adjustments.
(c) Monthly Reports. As soon as practicable, and in any event within
30 days, after the end of each monthly accounting period of each fiscal year,
the consolidated and consolidating operating reports for PXI and its
Subsidiaries for such period, in reasonable detail and in a form acceptable to
the Agents.
(d) Budgets: etc. Not less than 30 days after the commencement of each
fiscal year of PXI a budget in form satisfactory to the Agents prepared by PXI
for each of the four fiscal quarters of such fiscal year, setting forth, with
appropriate discussion, the principal assumptions upon which such budgets are
based. Together with each delivery of consolidated financial statements of PXI
pursuant to Section 7.01(a) and (b), a comparison of the current year to date
financial results (other than in respect of the balance sheets and statements of
cash flow included therein) against the budgets required to be submitted
pursuant to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Section 7.01(a) and (b), a certificate of
PXI signed by an Authorized Officer to the effect that no Default or Event of
Default exists or, if any Default or Event of Default does exist, specifying the
nature and extent thereof, which certificate shall set forth the calculations
required to establish whether PXI and its Subsidiaries were in compliance with
the provisions of Section 8.04 and Sections 8.09, 8.10 and 8.11, as at the end
of such fiscal quarter or year, as the case may be.
(f) Notice of Default or Litigation. Promptly, and in any event within
three Business Days after an officer of PXI or the Borrower obtains knowledge
thereof, notice of (x) the occurrence of any event which constitutes a Default
or Event of Default, which notice shall specify the nature thereof, the period
of existence thereof and what action the appropriate Credit Party proposes to
take with respect thereto and (y) the commencement of or any significant
development in any litigation or governmental proceeding pending against
Holdings, PXI or any of its Subsidiaries which could have a Material Adverse
Effect or a material adverse effect on the ability of any Credit Party to
perform its obligations hereunder or under any other Credit Document.
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(g) Environmental Matters. Promptly upon obtaining knowledge thereof,
notice of (i) any pending or threatened Environmental Claim against Holdings,
PXI or any of its Subsidiaries or any Real Property of Holdings, PXI or any of
its Subsidiaries unless such Environmental Claim could not, individually or when
aggregated with all other such Environmental Claims, reasonably be expected to
have a Material Adverse Effect; (ii) any condition or occurrence on any Real
Property of Holdings, PXI or any of its Subsidiaries that (a) results in
material noncompliance by Holdings, PXI or such Subsidiary with any applicable
Environmental Law, or (b) could reasonably be anticipated to result in an
Environmental Claim against Holdings, PXI or such Subsidiary or any Real
Property of Holdings, PXI or such Subsidiary, unless, with respect to clauses
(a) and (b) above, such noncompliance or such Environmental Claim could not,
individually or when aggregated with all other such non-compliance claims,
reasonably be expected to have a Material Adverse Effect; (iii) any condition or
occurrence on any Real Property of Holdings, PXI or any of its Subsidiaries that
could reasonably be anticipated to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property under any Environmental Law unless such restrictions could not,
individually or when aggregated with all other such restrictions, reasonably be
expected to have a Material Adverse Effect; and (iv) the taking of any removal
or remedial action in response to the actual or alleged presence of any
Hazardous Material on any Real Property of Holdings, PXI or any of its
Subsidiaries, unless the presence of such Hazardous Materials and the removal or
remedial action in response thereto could not, individually or when aggregated
with all such other occurrences or events, reasonably be expected to have a
Material Adverse Effect. All such notices shall describe in reasonable detail
the nature of the claim, investigation, condition, occurrence or removal or
remedial action and the response thereto of Holdings, PXI or such Subsidiary. In
addition, each Credit Party will provide the Agents with copies of all material
written communications with any government or governmental agency relating to
Environmental Laws, all communications with any government or governmental
agency relating to Environmental Claims, and such detailed reports of any
Environmental Claim, in each case as may reasonably be requested in writing from
time to time by the Agents.
(h) Other Information. (i) Promptly upon transmission thereof, copies
of any filings and registrations with, and reports to, the SEC by any Credit
Party or any of
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its Subsidiaries, copies of all press releases and copies of all financial
statements, notices and reports that any Credit Party or any of its Subsidiaries
shall send to analysts or the holders of the PXI Senior Notes or any other
publicly issued debt of any Credit Party or any of its Subsidiaries (in each
case, to the extent not theretofore delivered to the Banks pursuant to this
Agreement) and (ii) with reasonable promptness, such other information or
documents (financial or otherwise) as the Administrative Agent on its own behalf
or on behalf of the Required Banks may reasonably request from time to time.
7.02 Books, Records and Inspections. PXI will, and will cause each of
its Subsidiaries to, permit, upon notice to the Chief Financial Officer or any
other Authorized Officer of PXI, officers and designated representatives of the
Administrative Agent or the Banks to visit and inspect any of the properties or
assets of PXI and any of its Subsidiaries in whomsoever's possession, and to
examine the books of account and other financial and operating records
(including, without limitation, any reports or "management letters" submitted by
independent accountants) of PXI and any of its Subsidiaries and discuss the
affairs, finances and accounts of PXI and any of its Subsidiaries with, and be
advised as to the same by, the officers and independent accountants of PXI or
such Subsidiary, all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or any Bank may request.
7.03 Payment of Taxes. PXI will, and will cause each of its
Subsidiaries to, pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which penalties attach thereto,
and all lawful claims which, if unpaid, might become a Lien or charge upon any
properties of PXI or any of its Subsidiaries, provided that neither PXI nor any
of its Subsidiaries shall be required to pay any such tax, assessment, charge,
levy or claim which is being contested in good faith and by proper proceedings
if it has maintained adequate reserves (in the good faith judgment of the
management of such Person) with respect thereto in accordance with GAAP.
7.04 Corporate Franchises. PXI will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence, material rights and authority to do
business, provided that any transaction permitted by Section 8.01 will not
constitute a breach of this Section 7.04.
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7.05 Compliance with Statutes etc. (a) PXI will, and will cause each
of its Subsidiaries to, comply with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable Environmental Laws) other than those the
non-compliance with which (individually or in the aggregate) would not have a
Material Adverse Effect or a material adverse effect on the ability of any
Credit Party to perform its obligations under any Credit Document to which it is
party. Neither PXI nor any of its Subsidiaries will generate, use, treat, store,
Release or dispose of, or permit the generation, use, treatment, storage,
Release or disposal of Hazardous Materials on any of its Real Property, or
transport or permit the transportation of Hazardous Materials to or from any
such Real Property, except for quantities used or stored at such Real Properties
in material compliance with all applicable Environmental Laws and required in
connection with the normal operation, use and maintenance of such Real Property.
If required to do so under any applicable Environmental Law, each Credit Party
agrees to undertake, and agrees to cause each of its Subsidiaries to undertake,
any cleanup, removal, remedial or other action necessary to remove and clean up
any Hazardous Materials from any Real Property in accordance with the
requirements of all such applicable Environmental Laws and in accordance with
orders and directives of all governmental authorities; provided that no Credit
Party nor any of their Subsidiaries shall be required to take any such action
where same is being contested by appropriate legal proceedings in good faith by
such Credit Party or such Subsidiary.
(b) At the request of the Agents or the Required Banks, at any time
and from time to time, but in any event no more frequently than once in any
calendar year, each of the Borrower and Xtra will provide, at its sole cost and
expense, an environmental site assessment report concerning any Real Property of
the Borrower or Xtra or any of their respective Subsidiaries, prepared by an
environmental consulting firm approved by the Agents, indicating the presence or
Release of Hazardous Materials and the potential cost of any removal or remedial
action in connection with any Hazardous Materials on such Real Property,
provided that no such request may be made unless the Agents or the Required
Banks reasonably believe that (i) the Borrower or Xtra or any of their
respective Subsidiaries is in noncompliance with any Environmental Law with
respect to such Real Property and that such noncompliance could, individually,
or when aggregated with all such other noncompliance claims, reasonably be
expected
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to have a Material Adverse Effect, (ii) such non-compliance was not disclosed in
the environmental reports delivered in connection with the closing of the
Original Credit Agreement or (iii) an Event of Default is in existence. If the
Borrower or Xtra fails to provide the same after 60 days' written notice, the
Administrative Agent may order the same, and the Borrower or Xtra, as the case
may be, shall grant and hereby grants to the Administrative Agent and the Banks
and their agents access to such Real Property at all reasonable times and
without unreasonably interfering with the Borrower's or Xtra's operations and
specifically grant the Administrative Agent and the Banks an irrevocable
nonexclusive license, subject to the rights of tenants, to undertake such an
assessment all at the Borrower's or Xtra's, as the case may be, sole expense,
provided that the Borrower and Xtra shall have 120 days to obtain any necessary
governmental approvals to provide an environmental site assessment report that
includes subsurface soil or ground water sampling or analysis.
7.06 ERISA. As soon as possible and, in any event, within 15 days
after any Credit Party or any of its Subsidiaries or any ERISA Affiliate knows
or has reasonable cause to know of the occurrence of any of the following, PXI
will deliver to each of the Banks a certificate of PXI signed by an Authorized
Officer setting forth details as to such occurrence and the action, if any,
which such Credit Party, such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given to
or filed with or by such Credit Party, such Subsidiary, the ERISA Affiliate, the
PBGC, a Plan participant or the Plan administrator with respect thereto: that a
Reportable Event has occurred (except to the extent that PXI has previously
delivered to the Banks a certificate and notices (if any) concerning such event
pursuant to the next clause hereof); that a contributing sponsor (as defined in
Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA is subject
to the advance reporting requirement of PBGC Regulation Section 4043.61 (without
regard to subparagraph (b)(1) thereof), and an event described in subsection
.62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is
reasonably expected to occur with respect to such Plan within the following 30
days; that an accumulated funding deficiency, within the meaning of Section 412
of the Code or Section 302 of ERISA has been incurred or an application may be
or has been made to the Secretary of the Treasury for a waiver or modification
of the minimum funding standard (including any required installment payments) or
an extension of any amortization period under
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Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that a Plan has been or may be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; that proceedings may be or have
been instituted to terminate or appoint a trustee to administer a Plan; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; or that any Credit Party, any of its
Subsidiaries or any ERISA Affiliate will or may incur any material liability
(including any indirect, contingent or secondary liability) to or on account of
the termination of or withdrawal from a Plan under Section 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 4971,
401(a)(29), or 4975 of the Code or Section 409 or 502(i) or 502(1) of ERISA or
with respect to a group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) under Section 4980B of the Code. PXI will
deliver to each of the Banks a complete copy of the Internal Revenue Service
Annual Report (Form 5500) of each Plan, other than a multiemployer plan (as
defined in Section 3(37) of ERISA), required to be filed with the Internal
Revenue Service and copies of any records, documents or other information that
must be furnished to the PBGC with respect to any Plan pursuant to Section 4010
of ERISA. In addition to any certificates or notices delivered to the Banks
pursuant to- the first sentence hereof, copies of (i) annual reports filed by
any Credit Party or any of its Subsidiaries or any ERISA Affiliate with respect
to any Plan and (ii) any material notices received by any Credit Party or any of
its Subsidiaries or any ERISA Affiliate from any governmental agency or court
with respect to any Plan, shall in either case be delivered to the Banks no
later than 15 days after the date such report or notice has been filed with the
Internal Revenue Service or received by Holdings or such Subsidiary or the ERISA
Affiliate, as applicable.
7.07 Good Repair. PXI will, and will cause each of its Subsidiaries
to, use its best efforts to ensure that its properties and equipment used or
useful in its business in whomsoever's possession they may be, are kept in good
repair, working order and condition, normal wear and tear excepted and, subject
to Section 8.04, that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
customary for companies in similar businesses.
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7.08 End of Fiscal Years; Fiscal Quarters. PXI will, for financial
reporting purposes, cause (i) each of its, and of each of its Subsidiaries'
fiscal years to end on the last Saturday of January each year and (ii) each of
its, and each of its Subsidiaries' fiscal quarters to end on dates consistent
with the end of such fiscal years.
7.09 Maintenance of Property; Insurance. PXI will, and will cause each
of its Subsidiaries to, at all times maintain in full force and effect insurance
with carriers rated A- or better by A.M. Best (or such other carriers as are
acceptable to the Agents giving due consideration to market conditions and
availability for similar businesses in the same geographic region) in such
amounts, covering such risks and liabilities and with such deductibles or
self-insured retentions as are in accordance with normal industry practice,
provided that in no event will any such deductible or self-insured retention in
respect of liability claims or in respect of casualty damage exceed, in each
such case, $1,000,000 per occurrence, except that casualty damage insurance for
earthquake or windstorm (hurricane) may have a deductible of up to five percent
(5%) of values or as may be the standard for like businesses in the same
geographic area. At any time that insurance at the levels described in Schedule
IX is not being maintained by PXI and its Subsidiaries, PXI will notify the
Agents in writing thereof and, if thereafter notified by the Agents to do so,
PXI will obtain insurance at such levels at least equal to those set forth in
Schedule IX to the extent then generally available (but in any event within the
deductible or self-insured retention limitations set forth in the preceding
sentence) or otherwise as are acceptable to the Agents. PXI will furnish on the
Restatement Effective Date and annually thereafter to the Agents a summary of
the insurance carried in respect of it and its Subsidiaries and its or their
assets together with certificates of insurance and other evidence of such
insurance, if any, naming the Collateral Agent as mortgagee/secured party
and/or loss payee on applicable policies insuring the assets of PXI and its
Subsidiaries.
7.10 Additional Security; Further Assurances. (a) As and to the extent
requested from time to time by the Agents or the Required Banks, PXI will, and
will cause each of its Subsidiaries to, grant to the Collateral Agent, for the
benefit of the Secured Parties, security interests and mortgages in such assets
and properties of PXI or its Subsidiaries acquired after the Restatement
Effective Date and not otherwise covered by the original Security Documents,
other than assets encumbered by Liens permitted by Section 8.02(i),
(collectively, the "Additional Security Documents").
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Such security interests and mortgages shall be granted pursuant to documentation
satisfactory in form and substance to the Administrative Agent and shall
constitute valid and enforceable perfected security interests superior to and
prior to the rights of all third persons and subject to no other Liens except as
are permitted by Section 8.02 at the time of perfection thereof. The Additional
Security Documents or other instruments related thereto shall be duly recorded
or filed in such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent for the
benefit of the Secured Parties, required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall have been paid in full.
(b) PXI will, and will cause each of its Subsidiaries to, at its own
expense, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, real property surveys, reports
and other assurances or instruments and take such further steps relating to the
collateral covered by any of the Security Documents as the Collateral Agent may
reasonably require. Furthermore, PXI shall, and shall cause each of its
Subsidiaries to, cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be requested by the
Collateral Agent to assure themselves that this Section 7.10 has been complied
with.
(c) At the written request of the Agents or the Required Banks given
only after, and as a result of, a change in such law and/or the rules and
regulations thereunder and/or in the interpretation of any thereof, in each case
occurring after the Restatement Effective Date and requiring the delivery of
such appraisals, PXI shall, and shall cause each of its Subsidiaries to, provide
to the Agents appraisals satisfying applicable requirements of the Real Estate
Appraisal Reform Amendments of the Financial Institution Reform, Recovery and
Enforcement Act of 1989 in respect of the Real Property of PXI and its
Subsidiaries constituting Collateral, in form and substance satisfactory to the
Agents.
(d) Each Credit Party hereto agrees that each action required by
clauses (a) through (d) of this Section 7.10 shall be completed as soon as
possible, but in no event later than 30 days (60 days in the case of clause (c)
above) after such action is requested to be taken by the Administrative Agent or
the Required Banks.
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7.11 Maintenance of Corporate Separateness. PXI will, and will cause
each of its Subsidiaries to, satisfy customary corporate formalities, including
the holding of regular board of directors' and shareholders' meetings and the
maintenance of corporate offices and records. Neither the Borrower nor any other
Subsidiary of PXI shall make any payment to a creditor of Holdings or PXI in
respect of any liability of Holdings or PXI, and no bank account of Holdings or
PXI shall be commingled with any bank account of the Borrower or any other
Subsidiary of PXI. Any financial statements distributed to any creditors of
Holdings or PXI shall, to the extent permitted by GAAP, clearly establish the
corporate separateness of Holdings and PXI from the Borrower and each of PXI's
other Subsidiaries. Finally, no Credit Party nor any of their Subsidiaries shall
take any action, or conduct its affairs in a manner, which is likely to result
in the separate corporate existence of Holdings or PXI from that of any or all
of PXI's Subsidiaries being ignored, or in the assets and liabilities of the
Borrower or any other Subsidiary of PXI being substantively consolidated with
those of Holdings or PXI in a bankruptcy, reorganization or other insolvency
proceeding.
SECTION 8. Negative Covenants. PXI, the Borrower and Xtra hereby
covenant and agree that on the Restatement Effective Date and thereafter for so
long as this Agreement is in effect and until the Commitments have terminated,
no Letters of Credit are outstanding and the Loans, Unpaid Drawings, together
with interest, Fees and all other Obligations (other than any indemnities
described in Section 12.13 hereof which are not then due and payable) incurred
hereunder, are paid in full:
8.01 Consolidation, Merger, Sale or Purchase of Assets, etc. PXI will
not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs, or enter into any transaction of merger or consolidation,
sell or otherwise dispose of all or any part of its property or assets (other
than inventory, obsolete equipment, excess equipment no longer needed in the
conduct of business or equipment being replaced with other equipment, in each
case in the ordinary course of business) or purchase, lease or otherwise acquire
(in one transaction or a series of related transactions) all or any part of the
property or assets of any Person (other than purchases, leases or other
acquisitions of inventory and equipment in the ordinary course of business) or
agree to do any of the foregoing at any future time, except that the following
shall be permitted:
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(a) Capital Expenditures to the extent within the limitations set
forth in Section 8.04;
(b) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Section 8.05;
(c) (i) the merger or consolidation of any Subsidiary of PXI (other
than the Borrower or Xtra) with or into, or the liquidation thereof into, the
Borrower, Xtra or another Wholly-Owned Subsidiary of PXI which is a Subsidiary
Guarantor (so long as the Borrower, Xtra or such Subsidiary Guarantor is the
surviving corporation), and (iv) the conveyance, lease, sale or other transfer
of all or any part of the business, properties and assets of any Subsidiary of
PXI (other than the Borrower or Xtra) to the Borrower, Xtra or another
Wholly-Owned Subsidiary of PXI which is a Subsidiary Guarantor;
(d) leases of stores or warehouses by the Borrower, Xtra or their
Subsidiaries in the ordinary course of business and otherwise in compliance with
this Agreement;
(e) asset sales generating proceeds (A) individually in an amount
equal to or less than $25,000 or (B) individually in an amount greater than
$25,000 but in the aggregate for all such sales not in excess of $1,000,000 in
any fiscal year; provided that the Borrower shall deliver to the Administrative
Agent within thirty days of the end of the second and fourth fiscal quarters of
each fiscal year a schedule showing the asset sales made pursuant to this
Section 8.01(e)(B) during the previous two or four fiscal quarters respectively;
(f) the Hialeah & Dadeland Transfer;
(g) Asset Sales of the Florida Division Assets and the Rio Xxxxxx,
Xxxxxxx and North Mayaquez properties in Puerto Rico for consideration at the
time of such Asset Sale having a value (including the value of any noncash
consideration, as determined in good faith by the Board of Directors of PXI) at
least equal to the appraised value thereof so long as at least 80% of such
consideration is in cash; provided that at the time of any such Asset Sales the
Borrower shall have delivered to the Agents a certificate describing such Asset
Sale and stating that it is permitted under this Section 8.01(g) and under the
PXI Senior Note Documents; and
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(h) any acquisition of assets (not including Capital Expenditures) to
be employed in the business of the Borrower, Xtra or their Subsidiaries;
provided that (x) there are no Loans then outstanding, (y) the Leverage Ratio
for the most recently ended Test Period shall have been no greater than 3.5:1.00
and (z) such acquisition (taken together with all such prior acquisitions and
purchases, redemptions or prepayments of PXI Senior Notes since the Restatement
Date pursuant to Section 8.12(b)(ii) do not exceed the lesser of (i) 75% of
Excess Cash Flow for the period from and including January 25, 1997 to and
including the last day of the fiscal quarter ending on or most recently ended
prior to such acquisition and (ii) $25,000,000.
To the extent the Required Banks waive the provisions of this Section
8.01 with respect to the disposition of any Collateral, or any Collateral is
disposed of as permitted by this Section 8.01, such Collateral in each case
shall be sold free and clear of the Liens in favor of the Secured Parties
created by the Security Documents and the Administrative Agent shall take such
actions (including, without limitation, directing the Collateral Agent to take
such actions) as the Administrative Agent deems appropriate in connection
therewith.
8.02 Liens. PXI will not, and will not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Lien upon or with respect to
any property or assets of any kind (real or personal, tangible or intangible) of
PXI or any of its Subsidiaries, whether now owned or hereafter acquired, or sell
any such property or assets subject to an understanding or agreement, contingent
or otherwise, to repurchase such property or assets (including sales of accounts
receivable or notes with recourse to PXI or any of its Subsidiaries) or assign
any right to receive income, or file or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute, except:
(a) Liens for taxes not yet due and payable or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves (in the good faith judgment of the management of PXI) have been
established;
(b) Liens (other than any Lien imposed by ERISA) in respect of
property or assets of PXI, PXI or any of its Subsidiaries imposed by law which
were incurred in the ordinary course of business, such as carriers',
warehousemen's and mechanics' Liens, statutory landlords Liens, Liens in favor
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of customs and revenue authorities to secure payment of customs duties in
connection with the importation of goods, and other similar Liens arising in the
ordinary course of business, and (x) which, if any such property or asset is
material, do not in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of the
business of PXI or such Subsidiary or (y) which are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement or the other Credit
Documents;
(d) Liens on the assets of PXI and its Subsidiaries created prior to,
but that will remain outstanding on and after, the Restatement Effective Date
and listed on Schedule X hereto, without giving effect to any subsequent
extensions or renewals thereof ("Permitted Liens");
(e) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with (x) liability
insurance, workers' compensation, unemployment insurance and other types of
social security, or (y) to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred in
the ordinary course of business, in an aggregate amount not to exceed $5,000,000
(exclusive of obligations in respect of borrowed money);
(f) leases or subleases granted to third Persons not interfering with
the ordinary course of business of the Borrower or any of its Subsidiaries;
(g) Capital Leases to the extent permitted under Section 8.03(b)
hereof;
(h) Permitted Encumbrances; and
(i) Liens (x) arising pursuant to purchase money mortgages securing
Indebtedness representing the purchase price (or financing of the purchase price
within 180 days after the respective purchase) of property or other assets
acquired by the Borrower, Xtra or any other operating Subsidiary Guarantor,
provided that (i) any such Liens attach only to the assets so purchased, (ii)
the Indebtedness secured by any such Lien does not exceed 100% of the purchase
price of the assets being purchased and (iii) the
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Indebtedness secured thereby is permitted by Section 8.03(b); or (y) existing on
specific tangible assets at the time acquired by the Borrower or any other
Subsidiary of PXI or on assets of a Person at the time such Person first becomes
a Subsidiary of PXI, provided that (i) any such Liens were not created at the
time of or in contemplation of the acquisition of such assets or Person by PXI
or any of its Subsidiaries, (ii) in the case of any such acquisition of a
Person, any such Lien attaches only to specific tangible assets of such Person
and not assets of such Person generally, (iii) the Indebtedness secured by any
such Lien does not exceed 100% of the fair market value of the asset to which
such Lien attaches, determined at the time of the acquisition of such asset or
the time at which such Person becomes a Subsidiary of PXI and (iv) the
Indebtedness secured thereby is permitted by Section 8.03(b).
8.03 Indebtedness. PXI will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Capitalized Lease Obligations, and other Indebtedness secured by
Liens permitted by Section 8.02(i), of the Borrower, Xtra or any other operating
Subsidiary Guarantor so long as the aggregate principal amount of all
Indebtedness permitted by this clause (b) that is incurred (i) in any fiscal
year of PXI does not exceed $3,000,000 and (ii) in the aggregate does not exceed
$20,000,000;
(c) Indebtedness under Interest Rate Protection Agreements of the
Borrower to the extent entered into in respect of the Subordinated Intercompany
Real Estate Note, provided that the Interest Rate Protection Agreements entered
into pursuant to this clause (ii) are, taken as a whole, in the opinion of the
Agents, reasonably likely to result in the incurrence by the Borrower of no
greater liability in respect of interest payments than the stated interest rate
liability of PXI in respect of a like principal amount of the PXI Senior Notes;
(d) Permitted Existing Indebtedness;
(e) Indebtedness of PXI evidenced by (i) the PXI Senior Notes and (ii)
any PXI Subordinated Notes outstanding on the Restatement Effective Date after
giving effect to the Refinancing;
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(f) Indebtedness evidenced by the Subordinated Intercompany Real
Estate Note or any of intercompany notes issued on or prior to the Initial
Borrowing Date;
(g) Other intercompany Indebtedness permitted by Section 8.05; and
(h) PXI Subordinated Notes incurred after the Restatement Effective
Date in an aggregate principal amount not to exceed $25,000,000; provided that
at the time of incurrence of any such PXI Subordinated Notes, PXI shall be in
compliance with Sections 8.09 and 8.10 hereof calculated on a pro forma basis
after giving effect to such incurrence.
8.04 Capital Expenditures. (a) PXI will not, and will not permit any
of its Subsidiaries to, incur Capital Expenditures except Capital Expenditures
made in compliance with this Section 8.04. During each fiscal year of PXI ending
after the Restatement Effective Date, Capital Expenditures shall be permitted to
be made by the Borrower, Xtra and their respective Subsidiaries in an aggregate
amount for all such Persons not in excess of $25,000,000 (or pro rata portion
thereof for the portion of the then-current fiscal year that has elapsed prior
to the Maturity Date) other than Capital Expenditures made with funds received
by the Borrower pursuant to Section 8.05(1).
(b) To the extent Capital Expenditures made in any fiscal year are
less than the amount set forth for such fiscal year in clause (a) above (without
taking into account any increase pursuant to this clause (b)), an amount equal
to 100% of such difference but no greater than $10,000,000 may be carried
forward and used by the Borrower, Xtra and their respective Subsidiaries to make
Capital Expenditures pursuant to clause (a) in the immediately succeeding fiscal
year of PXI.
8.05 Advances, Investments and Loans. PXI will not, and will not
permit any of its Subsidiaries to, lend money or credit or make advances to any
Person, or purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to any Person, except:
(a) PXI and its Subsidiaries may invest in cash and Cash Equivalents;
(b) the Borrower, Xtra and Subsidiary Guarantors may acquire and hold
receivables owing to them, if created or
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acquired in its ordinary course of business and payable or dischargeable in
accordance with its customary trade terms;
(c) loans and advances to employees in the ordinary course of business
in an aggregate principal amount not to exceed $500,000 at any time outstanding
shall be permitted;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 8.03(c) shall be permitted;
(e) advances, investments and loans existing on the Restatement
Effective Date (and which are to remain outstanding after the Restatement
Effective Date) and listed on Schedule XI hereto, without giving effect to any
additions thereto or replacements thereof shall be permitted;
(f) the Borrower, Xtra and Subsidiary Guarantors may acquire and own
investments (including debt obligations) received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers in
the ordinary course of business;
(g) any Subsidiary of PXI may make advances, loans or contributions to
the Borrower, Xtra or any Subsidiary Guarantor in the ordinary course of
business;
(h) each Subsidiary of PXI may make (x) payments to its parent
corporation, PXI or Holdings, and PXI may make payments to Holdings, in each
case in satisfaction of its obligations under the Approved Tax Sharing Agreement
and/or (y) loans and/or advances to PXI and/or Holdings to the same extent as,
and in lieu of, Dividends otherwise permitted by Section 8.06(c);
(i) the Borrower and Xtra may make loans or advances to limited
partnerships in which the Borrower or Xtra, as the case may be, is a limited
partner for the purpose of developing shopping centers so long as the aggregate
amount of loans and advances permitted hereunder shall not exceed $3,000,000 at
any time outstanding;
(j) the Borrower and Xtra may make additional loans, advances and
investments of a nature not contemplated by the foregoing clauses (a) through
(i), provided that (x) all loans, advances and investments made pursuant to this
clause (i) shall not exceed $1,000,000 at any time outstanding and (y) no such
loan, advance or investment shall be made in or to (A) Holdings or its
Affiliates (other than
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Subsidiaries of PXI) or (B) a Subsidiary that is not, or which upon receipt
thereof does not become, a Subsidiary Guarantor;
(k) PXI may make the equity contributions to the Borrower and Xtra
required by Section 4.02(A)(c);
(1) PXI may make equity contributions to, or purchase common equity
of, the Borrower or Xtra, provided, that the proceeds of such equity
contributions or purchases shall be exclusively used by the Borrower or Xtra, as
the case may be, for the purpose of making Capital Expenditures; and
(m) the Hialeah & Dadeland Transfer shall be permitted.
8.06 Dividends, etc. PXI will not, and will not permit any Subsidiary
to, declare or pay any dividends (other than dividends payable solely in capital
stock of PXI) or return any capital to, its stockholders or authorize or make
any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire, directly
or indirectly, for a consideration, any shares of any class of its capital stock
now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes and PXI will not, and will not permit any of
its Subsidiaries to, purchase or otherwise acquire for consideration any shares
of any class of the capital stock of Holdings or PXI now or hereafter
outstanding (or any warrants for or options or stock appreciation rights issued
by such Person in respect of any such shares) (all of the foregoing
"Dividends"), except that:
(a) any Subsidiary of PXI may pay dividends to the Borrower, Xtra or a
Subsidiary Guarantor;
(b) any Subsidiary of PXI may pay dividends to its parent corporation,
and PXI may pay dividends to Holdings, in each case to the extent such dividends
are in satisfaction of, or otherwise reduce, such entity's obligations under an
Approved Tax Sharing Agreement; and
(c) PXI's Subsidiaries may pay cash dividends to PXI in an aggregate
amount necessary and to the extent immediately used by PXI to pay (i) accrued
fees and expenses arising from ongoing reporting and related requirements (or to
immediately dividend same to Holdings to be utilized immediately by Holdings to
pay such fees and expenses) and
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(ii) so long as no Default or Event of Default then exists or would exist as a
result thereof, interest on the PXI Senior Notes to the extent then due and
payable in accordance with the terms thereof (but only to the extent the funds
required for such interest have not been paid to PXI in respect of interest on
the Subordinated Intercompany Real Estate Note or Xtra's Subordinated
Intercompany Note.
8.07 Transactions with Affiliates. Holdings and PXI will not, and PXI
will not permit any of its Subsidiaries to, enter into any transaction or series
of transactions, whether or not in the ordinary course of business, with any
Affiliate other than on terms and conditions substantially as favorable (or more
favorable) to, PXI or such Subsidiary as would be obtainable by, PXI or such
Subsidiary at the time in a comparable arm's-length transaction with a Person
other than an Affiliate, except the foregoing shall not prohibit transactions
permitted pursuant to Section 8.05.
8.08 Chances in Business. Except as otherwise permitted by Sections
8.01 and 8.05, the Borrower and Xtra will not alter the character of the
business of the Borrower and Xtra and their Subsidiaries from the business
(including grocery retailing and wholesaling) conducted by the Borrower and Xtra
and their Subsidiaries on the Restatement Effective Date.
8.09 EBITDA to Total Cash Interest Expense. PXI will not permit the
ratio of (x) EBITDA to (y) Total Cash Interest Expense for any Test Period
ending on the last day of any fiscal quarter set forth below to be less than the
amount set forth opposite such fiscal quarter below.
Fiscal Ouarter Ending Ratio
--------------------- -----
May 18, 1997 1.50:1.00
August 9, 1997 1.50:1.00
November 1, 1997 1.50:1.00
January 31, 1998 1.50:1.00
May 23, 1998 1.50:1.00
August 15, 1998 1.50:1.00
November 7, 1998 1.50:1.00
January 30, 1999 1.75:1.00
May 22, 1999 1.75:1.00
August 14, 1999 1.75:1.00
November 6, 1999 1.75:1.00
January 29, 2000 2.00:1.00
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Fiscal Ouarter Ending Ratio
--------------------- -----
May 20, 2000 2.00:1.00
August 14 2000 2.00:1.00
November 4, 2000 2.00:1.00
January 27, 2001 2.25:1.00
May 19, 2001 2.25:1.00
August 11, 2001 2.25:1.00
November 3, 2001 2.25:1.00
January 26, 2002 2.25:1.00
May 18, 2002 2.25:1.00
August 10, 2002 2.25:1.00
November 2, 2002 2.25:1.00
January 25, 2003 2.25:1.00
8.10 Consolidated Indebtedness to EBITDA. PXI will not permit the
ratio of (i) Consolidated Indebtedness on the last day of any fiscal quarter set
forth below to (ii) EBITDA for the Test Period ending at the end of such fiscal
quarter to be greater than the amount set forth opposite such fiscal quarter
below:
Fiscal Quarter Ending Ratio
--------------------- -----
May 18, 1997 6.50:1.00
August 9, 1997 6.75:1.00
November 1, 1997 6.75:1.00
January 31, 1998 6.50:1.00
May 23, 1998 6.25:1.00
August 15, 1998 6.00:1.00
November 7, 1998 5.75:1.00
January 30, 1999 5.50:1.00
May 22, 1999 5.50:1.00
August 14, 1999 5.50:1.00
November 6, 1999 5.50:1.00
January 29, 2000 5.00:1.00
May 20, 2000 5.00:1.00
August 14 2000 5.00:1.00
November 4, 2000 5.00:1.00
January 27, 2001 4.50:1.00
May 19, 2001 4.50:1.00
August 11, 2001 4.50:1.00
November 3, 2001 4.50:1.00
January 26, 2002 4.50:1.00
May 18, 2002 4.50:1.00
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August 10, 2002 4.50:1.00
November 2, 2002 4.50:1.00
January 25, 2003 4.50:1.00
8.11 Senior Secured Debt to EBITDA. PXI will not permit the ratio of
(i) Senior Secured Debt on the last day of any fiscal quarter to (ii) EBITDA for
the Test Period ending at the end of such fiscal quarter to be greater than
1.50:1.00.
8.12 Limitation on Voluntary Payments; Preferred Stock. (a) PXI will
not, and will not permit any of its Subsidiaries to:
(i) make (or give any notice in respect of) any voluntary or
optional payment or prepayment of principal on or voluntary or optional
redemption of or acquisition for value of (including, without limitation, by way
of depositing with the trustee with respect thereto money or securities before
due for the purpose of paying when due), the Indebtedness described in Section
8.03(d) (except for the AFICA Bonds included therein), (e) (other than
cancellation of the $10 million subordinated note of PXI in favor of Holdings as
part of the Hialeah & Dadeland Transfer), (f) and (h);
(ii) amend or modify, or permit the amendment or modification of, any
provision of any such Indebtedness or any provision of its Certificate of
Incorporation or By Laws; or
(iii) issue any preferred or preference stock.
(b) Notwithstanding the foregoing Section 8.12(a) and so long as no
Default or Event of Default then exists (before and after giving effect to the
purchase, redemption or prepayment described below), PXI may purchase, redeem or
prepay PXI Senior Notes (i) on or after the date of any reduction of the Total
Revolving Commitment pursuant to Section 3.03(b)(III) in an amount equal to up
to 40% of the Net Equity Issuance Proceeds relating thereto or (ii) at any other
time provided in the case of this clause (ii) that (x) there are no Revolving
Loans then outstanding, (y) the Leverage Ratio for the most recently ended Test
Period shall have been no greater than 3.50:1.00 and (z) such purchase,
redemption or prepayment is made in an aggregate amount for all such payments
since the Restatement Effective Date (taken together with acquisitions made
during such period pursuant to Section 8.01(h)) not to exceed the lesser of 75%
of Excess Cash Flow for the period from and including January 25, 1997 to and
including the last day of the fiscal quarter ending on
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or most recently ended prior to such purchase, redemption or prepayment and
$25,000,000.
8.13 Issuance of Subsidiary Stock. PXI will not permit any of its
Subsidiaries to issue, sell, assign, pledge or otherwise encumber or dispose of
any shares of its capital stock or other equity securities (or warrants, rights
or options to acquire shares or other equity securities) except as part of the
Hialeah & Dadeland Transfer and except to the extent permitted by Sections
8.01(c) and 8.05 (to the extent such securities are pledged in favor of the
Collateral Agent), to PXI, the Borrower, Xtra or any Subsidiary Guarantor.
8.14 Limitation on Restrictions Affecting Subsidiaries. PXI will not,
and will not permit any Subsidiary to, directly, or indirectly, create or
otherwise cause or suffer to exist any encumbrance or restriction which
prohibits or limits the ability of PXI or any Subsidiary to (a) pay dividends or
make other distributions or pay any Indebtedness owed to any Credit Party or any
Subsidiary thereof, (b) make loans or advances to any Credit Party or any
Subsidiary thereof, (c) transfer any of its properties or assets to any Credit
Party or any Subsidiary thereof or (d) create, incur, assume or suffer to exist
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than encumbrances and restrictions arising under (i)
applicable law, (ii) this Agreement and the other Credit Documents, (iii)
Indebtedness permitted pursuant to Sections 8.03(b), (d) and (e), (iv) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of any Credit Party or any of its Subsidiaries and (v)
customary restrictions on dispositions of real property interests found in
reciprocal easement agreements of any Credit Party or any of its Subsidiaries.
SECTION 9. Events of Default. Upon the occurrence of any of the
following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment when due
of any principal of the Loans or any Unpaid Drawing or (ii) default, and such
default shall continue for two or more Business Days, in the payment when due of
any interest on the Loans or Unpaid Drawings or any Fees or any other amounts
owing hereunder or under any other Credit Document; or
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9.02 Representations, etc. Any representation, warranty or statement
made by any Credit Party herein or in any other Credit Document or in any
statement or certificate delivered or required to be delivered pursuant hereto
or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
9.03 Covenants. Any Credit Party shall (a) default in the due
performance or observance by it of any term, covenant or agreement contained in
Sections 7.10, 7.11, or 8, or (b) default in the due performance or observance
by it of any term, covenant or agreement (other than those referred to in
Section 9.01, 9.02 or clause (a) of this Section 9.03) contained in this
Agreement and such default shall continue unremedied for a period of at least 15
days after notice to the defaulting party by any Agent or the Required Banks; or
9.04 Default Under Other Agreements. (a) Any Credit Party or any of
their respective Subsidiaries (collectively, the "Designated Parties") shall (i)
default in any payment in respect of any Indebtedness (other than the
Obligations) in excess of $1,000,000 individually or $5,000,000 in the aggregate
of such entities or (ii) default in the observance or performance of any
agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, any such Indebtedness to become due prior to its stated maturity; or (b)
any such Indebtedness of any Designated Party shall be declared to be due and
payable, or required to be prepaid other than by a regularly scheduled required
prepayment, prior to the stated maturity thereof; or
9.05 Bankruptcy, etc. Any Designated Party shall commence a voluntary
case concerning itself under Title 11 of the United States Code entitled
"Bankruptcy", as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced against any Designated
Party and the petition is not controverted within 10 Business Days, or is not
dismissed within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of any Designated Party; or any Designated
Party commences any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or
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similar law of any jurisdiction whether now or hereafter in effect relating to
any Designated Party; or there is commenced against any Designated Party any
such proceeding which remains undismissed for a period of 60 days; or any
Designated Party is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered; or any Designated
Party suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or any Designated Party makes a general assignment for the
benefit of creditors; or any corporate action is taken by any Designated Party
for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof), and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following 30 days, any Plan is, shall have
been or is reasonably likely to have a trustee appointed to administer such
Plan, any Plan is, shall have been or is reasonably likely to be terminated or
the subject of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, any Designated Party or any ERISA Affiliate has
incurred or is reasonably likely to incur a liability to or on account of a Plan
under Section 409, 502(i), 502(1), 515, 4062, 4063, 4064, 4069, 4201, 4204 or
4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or on account of
a group health plan (as defined in Section 607(1) of ERISA or Section
4980B(g)(2) of the Code) under Section 4980B of the Code, or any Designated
Party or any ERISA Affiliate has incurred or is reasonably likely to incur
liabilities pursuant to one or more employee welfare benefit plans (as defined
in Section 3(1) of ERISA) that provide benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or employee
pension benefit plans (as defined in Section 3(2) of ERISA); (b) there shall
result from any event or events described in clause (a) of this Section 9.06,
the imposition of a lien, the granting of a security interest, or a liability or
a material risk of incurring a liability; and
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(c) which lien, security interest or liability referred to in clause (b) of this
Section 9.06, in the opinion of the Required Banks, will have a Material Adverse
Effect; or
9.07 Security Documents. On and after the date required to be filed
and/or recorded pursuant to Section 5.01 or 7.11, any Security Document shall
cease to be in full force and effect, or shall cease to give the Collateral
Agent on behalf of the Secured Parties the material Liens, rights, powers and
privileges purported to be created thereby in favor of the Collateral Agent, or
any Credit Party shall default in the due performance or observance of any term,
covenant or agreement on its part to be performed or observed pursuant to any
such Security Document; or
9.08 Guaranties. The Guaranties or any provision thereof shall cease
to be in full force and effect, or any Guarantor thereunder or any Person acting
by or on behalf of such Guarantor shall deny or disaffirm such Guarantor's
obligations under any Guaranty or any Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty; or
9.09 Judgments. One or more judgments or decrees shall be entered
against PXI and/or any of PXI's Subsidiaries (and not paid when due or fully
covered by insurance) involving a liability of $1,000,000 or more in the case of
any one such judgment or decree and $5,000,000 or more in the aggregate for all
such judgments and decrees for PXI and all PXI's Subsidiaries and all such
judgments or decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 30 days from the entry thereof; or
9.10 Chance of Control. A Change of Control shall have occurred;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent or any Bank to enforce its claims against the Borrowers,
except as otherwise specifically provided for in this Agreement (provided that,
if an Event of Default specified in Section 9.05 shall occur with respect to the
Borrower, the result which would occur upon the giving of written notice by the
Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
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Revolving Commitment terminated, whereupon the Revolving Commitment of each Bank
shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other notice of any kind; (ii)
declare the principal of and any accrued interest in respect of all Loans and
all obligations owing hereunder (including Unpaid Drawings) to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower; (iii) direct the Collateral Agent to enforce any or all of the Liens
and security interests created pursuant to the Security Documents; (iv)
terminate any Letter of Credit which may be terminated in accordance with its
terms; and (v) direct the Borrower to pay (and the Borrower hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default specified
in Section 9.05 in respect of the Borrower, it will pay) to the Administrative
Agent at the Payment Office such additional amounts of cash, to be held as
security for the Borrower's reimbursement obligations in respect of Letters of
Credit then outstanding equal to the aggregate Stated Amount of all Letters of
Credit then outstanding.
SECTION 10. Definitions. As used herein, the following terms shall
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Additional PXI Senior Note Documents" shall mean and include each of
the Additional PXI Notes and all securities purchase agreements, indentures and
other documents and agreements related thereto.
"Additional PXI Senior Notes" shall mean the aggregate of $85,000,000
of Senior Notes due August 1, 2003, issued by PXI at or prior to the Restatement
Effective Date.
"Additional Security Documents" shall have the meaning provided in
Section 7.10.
"Adjusted Cash Flow" for any period (taken as one accounting period)
shall mean Consolidated Net Income for such period (after provision for taxes)
plus the amount of all non-cash charges (including, without limitation,
amortization, depreciation, deferred tax expense and non-cash interest expense)
minus any non-cash credits (including in respect of deferred taxes) in each case
that were deducted in arriving at Consolidated Net Income for such fiscal period
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less the gains from sales of assets (other than sales of inventory and equipment
in the ordinary course of business) that were added in arriving at Consolidated
Net Income for such period.
"Adjusted Percentage" shall mean (x) at a time when no Bank Default
exists, for each Bank such Bank's Percentage and (y) at a time when an Bank
Default exists (i) for each Bank that is a Defaulting Bank, zero and (ii) for
each Bank that is a Non-Defaulting Bank, the percentage determined by dividing
such Bank's Revolving Commitment at such time by the Adjusted Total Revolving
Commitment at such time, it being understood that all references herein to
Revolving Commitments at a time when the Total Revolving Commitment has been
terminated shall be references to the Revolving Commitments in effect
immediately prior to such termination, provided that (A) an increase in a Bank's
Adjusted Percentage pursuant to the foregoing upon the occurrence of a Bank
Default will only be effected to the extent that after giving effect to such
increase, and any repayment of Revolving Loans pursuant to Section 4.02(A)(a) or
otherwise, the sum of (x) such Bank's new Adjusted Percentage of L/C
Outstandings and Swingline Loans plus (y) the outstanding principal amount of
such Bank's Revolving Loans equals its Revolving Commitment and (B) any changes
to the Adjusted Percentages not effected as a result of the preceding clause (A)
shall become effective on the first date or dates thereafter on which the
Revolving Outstandings are reduced, in each case to the extent permitted at such
time pursuant to clause (A).
"Adjusted Total Revolving Commitment" shall mean at any time the Total
Revolving Commitment less the aggregate Revolving Commitments of all Defaulting
Banks.
"Administrative Agent" shall mean Scotiabank in its capacity as
Administrative Agent hereunder and shall include any successor to the
Administrative Agent appointed pursuant to Section 11.09.
"AFICA Bonds" shall mean the Series A, B and C Industrial Revenue
Bonds issued on October 1, 1985, November 1, 1985 and December 5, 1985
respectively by the Puerto Rico Industrial, Medical and Environmental Pollution
Control Facilities Finance Authority.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person. A Person shall be deemed to con-
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trol a corporation if such Person possesses, directly or indirectly, the power
(i) to vote 10% or more of the securities having ordinary voting power for the
election of directors of such corporation or (ii) to direct or cause the
direction of the management and policies of such corporation, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" shall mean and include the Administrative Agent and the
Syndication Agent.
"Agreement" shall mean this Amended and Restated Credit Agreement, as
the same may be from time to time modified, amended and/or supplemented.
"Approved Tax Sharing Agreement" shall mean a tax sharing and/or tax
allocation agreement with Holdings in form and substance satisfactory to the
Agents and providing, inter alia, for an allocation for the payment of U.S.
income taxes on a basis no less favorable to PXI and its Subsidiaries than they
would be obligated to pay on a stand-alone basis.
"Asset Sale" shall mean and include (i) the sale, transfer or other
disposition by PXI or any of its Subsidiaries to any Person (other than the
Borrower or Xtra or any of their respective Wholly-Owned Subsidiaries) of any
asset of PXI or any of its Subsidiaries (other than (x) sales, transfers or
other dispositions in the ordinary course of business of inventory and/or
obsolete or excess equipment, (y) sales generating proceeds individually in an
amount equal to or less than $25,000 or (z) other sales generating proceeds in
the aggregate for all such sales not in excess of $1,000,000 in any fiscal year)
and (ii) the sale, transfer or other disposition by PXI to any Person of any
capital stock of the Borrower owned by PXI.
"Assignment Agreement" shall have the meaning provided in Section
12.04(b).
"Authorized Officer" shall mean any senior officer of any Person
designated as such in writing to the Administrative Agent by the President or
Chief Financial Officer of such Person.
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the refusal (which has not been
retracted) of an Bank to make available its portion of any Borrowing of
Revolving Loans (including a Man-
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datory Borrowing) or to fund its portion of any unreimbursed drawing under
Section 2.02(c) or (ii) a Bank having notified the Administrative Agent and/or
the Borrower that it does not intend to comply with the obligations under
Section 1.01(A) or 1.01(C) or under Section 2.02(c), in either case as a result
of the appointment of a receiver or conservator with respect to such Bank at the
direction or request of any regulatory agency or authority.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" shall mean the higher of (i) Federal Funds Rate plus 1/2
of 1%, or (ii) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Base Rate Margin" shall mean 1.25% minus the then applicable
Reduction Percentage.
"Blockbuster PR" shall mean a division of the Borrower
"Blockbuster VI" shall mean a division of Xtra, a Wholly-Owned
Subsidiary of the Borrower.
"Borrower" shall mean Pueblo International Inc.
"Borrower Pledge Agreement" shall have the meaning provided in Section
5.01(f).
"Borrower Security Agreement" shall have the meaning provided in
Section 5.01(h).
"Borrowing" shall mean the incurrence of one Type of Loan by the
Borrower from all of the Banks on a given date (or resulting from conversions on
a given date), having in the case of Eurodollar Loans the same Interest Period,
provided that Base Rate Loans incurred pursuant to Section 1.10(b) shall be
considered part of any related Borrowing of Eurodollar Loans.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York or San Xxxx, Puerto Rico a legal holiday or a day on
which banking institutions are authorized by law or other governmental actions
to close and (ii) with respect to all notices and determinations in connection
with, and payments
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of principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (i) and which is also a day for trading by and between banks
in U.S. dollar deposits in the New York interbank Eurodollar market.
"Capital Expenditures" shall mean, for any period, the aggregate of
all expenditures (whether paid in cash or accrued as liabilities, including
Capitalized Lease Obligations but excluding Tape Expenditures, by PXI and its
Subsidiaries during that period that, in conformity with GAAP, are or are
required to be included in the property, plant or equipment reflected in the
balance sheet of PXI and its Subsidiaries, provided that Capital Expenditures
shall in any event include the purchase price paid in connection with the
acquisition of any Person (including through the purchase of all of the capital
stock or other ownership interests of such Person or through merger or
consolidation) to the extent allocable to property, plant and equipment.
"Capital Lease," as applied to any Person, shall mean any lease of
any property (whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the consolidated
balance sheet of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of PXI and its Subsidiaries in each case taken at the amount
thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean (i) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (ii) U.S. dollar denominated
time deposits, certificates of deposit and bankers acceptances of (x) any Bank
that is a commercial bank having capital and surplus in excess of $500,000,000
or (y) any bank whose short-term commercial paper rating from S&P is at least
A-1 or the equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent
thereof (any such bank, an "Approved Bank"), in each case with maturities of not
more than six months from the date of acquisition, (iii) commercial paper issued
by any Bank or Approved Bank or by the parent company of any Bank or Approved
Bank and commercial paper issued by, or guaranteed by, any industrial or
financial company with a short-term commercial paper rating of at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
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Moody's (any such company, an "Approved Company"), or guaranteed by any
industrial company with a long term unsecured debt rating of at least A or A2,
or the equivalent of each thereof, from S&P or Moody's, as the case may be, and
in each case maturing within six months after the date of acquisition and (iv)
any fund or funds investing solely in investments of the type described in
clauses (i) through (iv) above.
"Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments (including any cash received by way of deferred payment
pursuant to a note receivable issued in connection with such Asset Sale, other
than the portion of such deferred payment constituting interest, but only as and
when so received) received by PXI or a Subsidiary of PXI, as the case may be,
from such Asset Sale.
"CC Percentage" shall mean (x) at all times that the Reduction
Percentage is less than 1/2 of 1%, .50%, (y) at all times that the Reduction
Percentage is 1/2 of 1%, 40%, and (z) at all times that the Reduction Percentage
is 3/4 of 1%, .30%.
"CELA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et
seq.
"Change of Control" shall mean (i) the direct or indirect acquisition
by any Person or group (as such term is defined in Section 13(d)(3) of the
Securities Exchange Act of 1934 (the "Exchange Act")), other than a group
composed in whole or substantially in whole of the Xxxxxxxx Group and/or the
Management Group, of beneficial ownership (as such term is defined in Rule 13d-3
promulgated under the Exchange Act) of 33-1/3% or more of the outstanding shares
of Voting Stock of Holdings, (ii) the failure of PXI to own 100% of the capital
stock of the Borrower or (directly or indirectly through the Borrower) Xtra,
(iii) the failure of the Xxxxxxxx Group to beneficially own and control 80% of
the Voting Stock of Holdings (and indirectly of PXI) or after an initial public
offering of Voting Stock of Holdings or PXI, a majority of the Voting Stock of
Holdings (and indirectly of PXI) or (iv) any "change of control" or similar
event shall occur under the PXI Senior Note Documents.
"Xxxxxxxx Group" shall mean the group of companies directly or
indirectly controlled by Xxxxxxx or Xxxxxxx Xxxxxxxx and trusts for the benefit
of their families.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor. For purposes of Sections 6.13,
7.06, and 9.06 of this Agreement and the defined terms "ERISA Affiliate" and
"Unfunded Current Liability," all references to the Code shall include the
comparable sections of the Puerto Rico Internal Revenue Code of 1994, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents or other property of any Credit Party on which a Lien is
granted pursuant to any Security Document.
"Collateral Agent" shall mean Scotiabank acting as collateral agent
for the Secured Parties under the Security Documents.
"Commitment Commission" shall have the meaning provided in Section
3.01(a).
"Consolidated Indebtedness" shall mean the principal amount of all
Indebtedness of PXI and its Subsidiaries required to be accounted for as debt in
accordance with GAAP, determined on a consolidated basis.
"Consolidated Net Income" shall mean for any period, the consolidated
net income (or loss) of PXI and its Subsidiaries for such period taken as a
single accounting period determined in conformity with GAAP provided that there
shall be excluded the income (or loss) of any Person in which any other Person
(other than the Borrower, Xtra or a Wholly-Owned Subsidiary of the Borrower or
Xtra) has a joint interest, except to the extent of the amount of dividends or
other distributions actually paid to the Borrower or Xtra by such Person during
such period.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obliger") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
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or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obliger, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof; provided, however, that
the term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Credit Documents" shall mean this Agreement, the Notes, the Security
Documents and the Subsidiary Guaranty.
"Credit Event" shall mean and include the making of a Loan and the
issuance of a Letter of Credit.
"Credit Party" shall mean each of (i) PXI, (ii) the Borrower, (iii)
Xtra and (iv) the other Subsidiary Guarantors.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, specified in Section 9 would constitute an Event of
Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Designated Parties shall have the meaning provided in Section 9.04.
"Dividends" shall have the meaning provided in Section 8.06.
"EBIT" shall mean, for any period, Consolidated Net Income, before
interest income, interest expense, LIFO adjustment and provision for income
taxes and Puerto Rico withholding taxes and without giving effect to any
nonrecurring charges, extraordinary gains, extraordinary losses
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or gains from sales of assets (other than sales of inventory in the ordinary
course of business).
"EBITDA" for any period shall mean EBIT, adjusted by (i) adding
thereto the amount during such period of all amortization of intangibles and
depreciation plus all non-cash charges in respect of deferred profit sharing
plans, deferred compensation plans, pension plans and employee health plans and
(ii) subtracting therefrom the amount of Tape Expenditures during such period;
provided that for purposes of determining EBITDA for Sections 8.09, 8.10 and
8.11 for any period ending in May, August or November, EBITDA shall not include
any adjustment for non-cash charges in respect of deferred profit-sharing plans,
deferred compensation plans, pension plans and employee health plans during such
period, but EBITDA determined for any period ending in January shall include all
such adjustments since the end of the preceding fiscal year. In calculating
EBITDA for purposes of Sections 8.10 and 8.11, EBITDA for the Test Period ending
(i) on May 17, 1997 shall be multiplied by 4.0, (ii) on August 9, 1997 shall be
multiplied by 2.0 and (iii) on November 1, 1997 shall be multiplied by 4/3.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations (other than internal reports prepared
by PXI or any of PXI's Subsidiaries solely in the ordinary course of such
Person's business and not in response to any third party action or request of
any kind) or proceedings relating in any way to any Environmental Law or any
permit issued, or any approval given, under any such Environmental Law
(hereafter, "Claims"), including, without limitation, (a) any and all Claims by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any applicable
Environmental Law, and (b) any and all Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code and rule of common law now
or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials, including, without limitation, CELA; RA; the Federal
Water
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Pollution Control Act, as amended, 33 U.S.C. Section. 1251 et seq; the Toxic
Substances Control Act, 15 U.S.C. Section 7401 et seq.; the Clean Air Act, 42
U.S.C. Section 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section
3808 et seq; the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq. and
any applicable state and local or foreign counterparts or equivalents.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at the
date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with PXI or any Subsidiary of Holdings would be deemed
to be a "single employer" within the meaning of Section 414(b) or (c) of the
Code, and with respect to Sections 412 and 4971 of the Code and Section 302 of
ERISA, Section 414(b), (c), (m) or (o) of the Code.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Margin" shall mean 2.25% less the then applicable
Reduction Percentage.
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the rate determined by the Administrative Agent to be the
arithmetic mean (rounded to the nearest 1/100 of 1%) of the offered quotation to
first-class banks in the London interbank Eurodollar market by each Reference
Bank for Dollar deposits of amounts in same day funds comparable to the
outstanding principal amount of the Eurodollar Loan of such Reference Bank for
which an interest rate is then being determined with maturities comparable to
the Interest Period to be applicable to such Eurodollar Loan, determined as of
11:00 A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period, divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation
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D), provided that if one or more of the Reference Banks fail to provide the
Administrative Agent with its aforesaid rate, then the Eurodollar Rate shall be
determined based on the rate or rates provided to the Administrative Agent by
the other Reference Bank or Banks.
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period, the remainder of (A)
the sum of (i) Adjusted Cash Flow for such period, and (ii) to the extent not
included in (A)(i) above, any amounts (net of reasonable fees, expenses and
other costs incurred in connection therewith) received by PXI or any of its
Subsidiaries in settlement of, or in payment of any judgments resulting from,
actions, suits or proceedings with respect to PXI or such Subsidiary from the
first day to the last day of such period, minus (B) the sum of (i) the increase
(or plus any decrease) in LIFO reserves established by PXI and its Subsidiaries
from the first day to the last day of such period, (ii) the sum of (x) the
excess of the amount of Capital Expenditures made during such period pursuant to
Section 8.04(a), as modified by Section 8.04(b), over all Capital Expenditures
made during such period pursuant to said Section 8.04(a) (as so modified) that
are financed by Indebtedness (other than the Revolving Loans hereunder) plus (y)
the amount, if any, of Capital Expenditures that the Borrower, Xtra and their
respective Subsidiaries may make pursuant to Section 8.04(a) in the next
following fiscal year in excess of the amount of Capital Expenditures set forth
in said Section for such next fiscal year as a result of the operation of
Section 8.04(b), (iii) all Third Party Debt Repayments made during such period,
and (iv) any Net Debt Issuance Proceeds and Net Equity Issuance Proceeds to the
extent included in Adjusted Cash Flow for such period.
"Existing Letter of Credit" shall mean each of the letters of credit
described in Schedule II.
"Existing PXI Senior Note Documents" shall mean and include each of
the Existing PXI Senior Notes and all securities purchase agreements, indentures
and other documents and agreements related thereto, all as in effect on March 1,
1997.
"Existing PXI Senior Notes" shall mean the aggregate $180,000,000 of
Senior Notes due 2003, issued by PXI at the time of the Initial Borrowing Date.
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"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate equal for each day during such period to the weighted average of the rates
on overnight Federal Funds transactions with members of the Federal Reserve
System arranged by Federal Funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Florida Division Assets" shall mean any of the retail stores and the
distribution center operated by Xtra in Florida and all equipment, inventory and
receivables constituting part of or arising from the business conducted at such
stores and the distribution center.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect on the date of this Agreement; it being
understood and agreed that determinations in accordance with GAAP for purposes
of Section 8, including defined terms as used therein, are subject (to the
extent provided therein) to Section 12.07(a).
"Guaranties" shall mean and include the guarantees set forth in
Section 13 of this Agreement and the Subsidiary Guaranty.
"Guarantor" shall mean and include PXI, Xtra and each Subsidiary
Guarantor.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contamin-
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ants," or "pollutants," or words of similar import, under any applicable
Environmental Law.
"Hialeah & Dadeland Transfer" shall mean, collectively, a transfer or
series of related transfers of the Hialeah and Dadeland properties as a result
of which Holdings owns, directly or indirectly, the Hialeah and Dadeland
properties and the subordinated note of PXI in favor of Holdings in the
principal amount of $10,000,000 (a copy of which is attached hereto as Exhibit
M) is satisfied.
"Holdings" shall mean PXC&M Holdings, Delaware corporation.
Inc., a Delaware corporation.
"Indebtedness" of any Person shall mean without duplication (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services (other than deferred allowance relating to merchandise)
which in accordance with generally accepted accounting principles would be shown
on the liability side of the balance sheet of such Person, (iii) the face amount
of all letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second
Person secured by any Lien on any property owned by such first Person, whether
or not such indebtedness has been assumed, (v) all Capitalized Lease Obligations
of such Person, (vi) all obligations of such Person to pay a specified purchase
price for goods or services whether or not delivered or accepted, i.e.,
take-or-pay and similar obligations, (vii) all obligations of such Person under
Interest Rate Protection Agreements, (viii) all reimbursement or other monetary
obligations with respect to surety, performance and bid bonds, and (ix) all
Contingent Obligations of such Person, provided that Indebtedness shall not
include trade payables and accrued expenses, in each case arising in the
ordinary course of business.
"Initial Borrowing Date" shall have the meaning provided in the
Original Credit Agreement.
"Intercompany Mortgages" shall have the meaning provided in Section
5.01(i)(ii).
"Interest Period", with respect to any Loan, shall mean the interest
period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, any interest rate cap agreement, any interest rate collar agreement
or other similar
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agreement or arrangement designed to hedge the risks for a Person with respect
to, or otherwise manage, interest rates.
"L/C Fee" shall have the meaning provided in Section 3.01(b).
"L/C Outstandings" shall mean, at any time, the sum of, without
duplication, (i) the aggregate Stated Amount of all outstanding Letters of
Credit and (ii) the aggregate amount of all Unpaid Drawings.
"Leasehold" of any Person means all of the right, title and interest
of such Person as lessee or licensee in, to and under leases or licenses of
land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Issuer" shall mean and include Scotiabank and/or its
Affiliates.
"Letter of Credit Request" shall have the meaning provided in Section
2.03(a).
"Leverage Ratio" shall mean the ratio described in Section 8.10.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement or any
lease in the nature thereof).
"Loan" shall mean each and every Loan made by any Bank hereunder,
including Revolving Loans and Swingline Loans.
"Management Group" shall mean the group of shareholders of Holdings
that are employees of PXI or its Subsidiaries.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(C).
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, liabili-
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ties, condition (financial or otherwise) or prospects of the Borrower or PXI and
its Subsidiaries taken as a whole.
"Maturity Date" shall mean February 1, 2003.
"Maximum Swingline Amount" shall mean $5,000,000.
"Minimum Assignment Amount" shall mean, with respect to any assignment
by any Bank of its Revolving Commitment hereunder an amount equal to $5,000,000.
"Minimum Borrowing Amount" shall mean (i) for Base Rate Loans (other
than Swingline Loans), $1,000,000, (ii) for Eurodollar Loans $2,000,000 and
(iii) for Swingline Loans, $500,000.
"Xxxxx'x" shall mean Xxxxx'x Investors Services, Inc.
"Mortgages" shall mean deeds of trust, leasehold deeds of trust,
mortgages, leasehold mortgages or similar documents covering the Mortgaged
Properties located in Florida and the U.S. Virgin Islands.
"Mortgage Policies" shall have the meaning provided in Section
5.01(i).
"Mortgaged Properties" shall mean and include (i) all Real Properties
owned or leased by PXI or any of its Subsidiaries, to the extent designated as
such on Schedule VI hereto and (ii) each Real Property subjected to a mortgage
in favor of the Collateral Agent for the benefit of the Secured Parties pursuant
to Section 7.11.
"NationsBank" shall mean NationsBank, N.A. (South).
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
Cash Proceeds resulting therefrom net of reasonable costs and expenses of sale
and related cash settlements (including payment of severance and other
termination costs, other current liabilities attaching to the assets sold and
retained by the seller and principal, premium and interest of Indebtedness other
than the Loans, required to be, and which is, repaid under the terms thereof as
a result of such Asset Sale) and incremental taxes paid or payable as a result
thereof.
"Net Debt Issuance Proceeds" shall mean the proceeds (net of
reasonable costs associated therewith) received from the incurrence of
Indebtedness.
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"Net Equity Issuance Proceeds" shall mean the proceeds (net of
underwriting discounts and commissions and other reasonable costs associated
therewith) received from the sale of equity.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Note" shall mean each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section 1.02.
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent at
000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, or such other
office as the Administrative Agent may designate to the Borrowers and the Banks
from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
the Collateral Agent, any Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Participating Bank" shall have the meaning provided in Section
2.02(a).
"Payment Office" shall mean the office of the Administrative Agent in
Atlanta or such other office as the Administrative Agent may designate to the
Borrower and the Banks from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Percentage" shall mean at any time for each Bank, the percentage
obtained by dividing such Bank's Revolving Commitment by the Total Revolving
Commitment.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Mortgaged Property listed in the Mortgage
Policies in respect thereof and found reasonably acceptable by the
Administrative Agent (which shall include all thereof specified in the Mort-
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gage Policies delivered to and accepted by the Collateral Agent pursuant to
Section 5.01(i)(iii)), (ii) as to any particular Mortgaged Property at any time,
such easements, encroachments, covenants, rights of way, minor defects,
irregularities or encumbrances on title which are not unusual with respect to
property similar in character to any such Mortgaged Property and which do not,
materially impair such Mortgaged Property for the purpose for which it is held
by the mortgagor thereof, or the lien held by the Collateral Agent, (iii)
municipal and zoning ordinances, which are not violated by the existing
improvements and the present use made by the mortgagor thereof of the Premises
(as defined in the respective Mortgage), (iv) general real estate taxes and
assessments not yet delinquent, (v) as to any Mortgage encumbering any PRMP, the
lien of the Intercompany Mortgage and (vi) such other items as the
Administrative Agent may consent to.
"Permitted Existing Indebtedness" shall have the meaning provided in
Section 6.19.
"Permitted Liens" shall have the meaning provided in Section 8.02(d).
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, association, trust or other enterprise or any government or
political subdivision or any agency, department or instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of), any Credit Party or any ERISA Affiliate, and each
such plan for the five year period immediately following the latest date on
which any Credit Party or any ERISA Affiliate maintained, contributed to or had
an obligation to contribute to such plan.
"Pledge Agreements" shall mean and include the PXI Pledge Agreement,
the Borrower Pledge Agreement, the Xtra Pledge Agreement and the XM Pledge
Agreement.
"Pledged Securities" shall mean and include the Pledged Securities as
defined in each of the Pledge Agreements.
"Prime Lending Rate" shall mean the rate which Scotiabank announces
from time to time as its prime lending rate, the Prime Lending Rate to change
when and as such prime lending rate changes. The Prime Lending Rate is a
reference
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rate and does not necessarily represent the lowest or best rate actually charged
to any customer. Scotiabank may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"PRMP" shall mean and include each Mortgaged Property located in
Puerto Rico.
"Puerto Rico Pledge Agreement" shall have the meaning provided in
Section 5.01(i)(ii).
"PXI" shall have the meaning provided in the first paragraph of this
Agreement.
"PXI Pledge Agreement" shall have the meaning provided in Section
5.01(f).
"PXI Senior Note Documents" shall mean and include the Existing PXI
Senior Note Documents and the Additional PXI Senior Note Documents.
"PXI Senior Notes" shall mean and include the Existing PXI Senior
Notes and the Additional PXI Senior Notes.
"PXI Subordinated Notes" shall mean any subordinated indebtedness of
PXI to any member of the Xxxxxxxx Group, the entire proceeds of which are
provided immediately to the Borrower and used immediately thereafter to prepay
Revolving Loans; provided that (i) no such Indebtedness shall be guaranteed by
any Subsidiary of PXI, (ii) no such Indebtedness shall be secured by any asset
of PXI or any of its Subsidiaries, (iii) any such Indebtedness shall be
subordinated to the Obligations to the satisfaction of the Administrative Agent,
(iv) no PXI Subordinated Notes shall mature prior to July 31, 2004, (v) no PXI
Subordinated Notes shall bear interest at a rate per annum in excess of 1% in
excess of the interest rate applicable to the Loans, (vi) the incurrence of such
Indebtedness is permitted pursuant to the terms of the PXI Senior Note Documents
and (vii) all other terms and conditions of such Indebtedness are in form and
substance reasonably satisfactory to the Administrative Agent. The incurrence of
PXI Subordinated Notes shall be deemed to be a representation and warranty by
PXI that all conditions thereto have been satisfied and that same is permitted
in accordance with the terms of this Agreement, which representation and
warranty shall be deemed to be a representation and warranty for all purposes
hereunder, including, without limitation, Sections 5.02 and 9.02.
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"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Reduction Percentage" shall mean (a) initially zero, (b) at any time
there exists a Default or Event of Default, zero and (c) from and after the
first day of any fiscal quarter of PXI (such first day being the "Start Date")
commencing after the Restatement Effective Date to and including the last day of
such fiscal quarter, the applicable percentage set forth below to the extent
that the ratio (the "Leverage Ratio") of (x) Consolidated Indebtedness on the
last day of the second to last fiscal quarter ending prior to the Start Date to
(y) EBITDA for the period of four consecutive fiscal quarters (taken as a whole)
ending on the last day of the second to last fiscal quarter ending prior to the
Start Date equals the ratio set forth opposite such percentage, and no less than
5 Business Days before the Start Date, a certificate signed by the Chief
Financial Officer of PXI is delivered to the Administrative Agent certifying as
to the entitlement to, and the amount of, a Reduction Percentage (and providing
for the calculation thereof):
Leverage Reduction
Ratio Percentage
---------- ----------
4.5:1 or greater, 1/4% of 1%
but less than 5.0:1
4.0:1 or greater 1/2% of 1%
but less than 4.5:1
less than 4.0:1 3/4% of 1%
"Reference Banks" shall mean and include Scotiabank and NationsBank.
"Refinancing" shall mean the issuance of the Additional PXI Senior
Notes and the repayment of all Loans under and as defined in the Original Credit
Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing margin requirements.
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"Reinvestment Amount" shall mean, with respect to any Asset Sale, the
amount specified in the Reinvestment Notice delivered by the Borrower in
connection therewith as the portion of the Net Cash Proceeds from such Asset
Sale that the Borrower and/or Xtra has used or intends to use to purchase,
construct or otherwise acquire Reinvestment Assets.
"Reinvestment Assets" shall mean any assets to be employed in the
business of the Borrower, Xtra and their Subsidiaries as permitted in Section
8.08.
"Reinvestment Election" shall have the meaning provided in Section
3.03(b)(I).
"Reinvestment Notice" shall mean a written notice signed by an
Authorized Officer of the Borrower stating that the Borrower and/or Xtra has
used or in good faith intends and expects to use the portion specified therein
of the Net Cash Proceeds of an Asset Sale to purchase, construct or otherwise
acquire Reinvestment Assets.
"Reinvestment Reduction Amount" shall mean, with respect to any Asset
Sale, the amount, if any, on the Reinvestment Reduction Date relating thereto by
which (a) the Reinvestment Amount in respect of such Asset Sale exceeds (b) the
aggregate amount thereof expended by the Borrower, Xtra and their Subsidiaries
to acquire Reinvestment Assets.
"Reinvestment Reduction Date" shall mean, with respect to any Asset
Sale, the earlier of (i) the date occurring one year after such Asset Sale and
(ii) the date on which the Borrower and/or Xtra shall have determined not to, or
shall have otherwise ceased to, proceed with the purchase, construction or other
acquisition of Reinvestment Assets with the related Reinvestment Amount.
"Release" shall mean disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing and
the like, into or upon any land or water or air, or otherwise entering into the
environment.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan other than those events as to which the 30-day
notice period is waived under Subsection .22, .23, .25, .27 or .28 of PBGC
Regulation Section 4043.
"Required Banks" shall mean, at any time, Banks whose Adjusted
Percentages exceed 50%.
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"Restatement Effective Date" shall have the meaning provided in
Section 5.01.
"Revolving Commitment" shall mean, with respect to each Bank, the
amount set forth opposite such Bank's name in Schedule I hereto directly below
the column entitled "Revolving Commitment", as same may be reduced from time to
time pursuant to Section 3.02, 3.03 and/or 9.
"Revolving Loan" shall have the meaning provided in Section 1.01(A).
"Revolving Note" shall have the meaning provided in Section 1.05(a).
"Revolving Outstandings" shall mean, at any time, the sum of the
outstanding principal amount of Revolving Loans and Swingline Loans at such time
plus the L/C Outstandings at such time.
"S&P" shall mean Standard & Poor's Corporation.
"Scotiabank" shall mean The Bank of Nova Scotia.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Secured Parties" shall mean the Banks, the Agents, and the Collateral
Agent.
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreements.
"Security Agreements" shall mean and include (i) the Borrower Security
Agreement, (ii) the Subsidiary Security Agreements and (iii) any other security
agreement executed by PXI or any of its Subsidiaries pursuant to Section 7.10.
"Security Documents" shall mean and include the Security Agreements,
the Pledge Agreements, the Mortgages, the Intercompany Mortgages, the Puerto
Rico Pledge Agreement, any other document entered into by any Credit Party
granting a Lien in favor of the Collateral Agent on property in Puerto Rico and
after the execution and delivery thereof, each Additional Security Document.
"Senior Secured Debt" shall mean at any time (x) Consolidated
Indebtedness less (y) Indebtedness included in Consolidated Indebtedness that
(x) is expressly subordinated
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to the Obligations on a basis satisfactory to the Agents and/or (y) is
unsecured.
"Stated Amount" of each Letter of Credit shall mean the maximum
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subordinated Intercompany Notes" shall mean the promissory notes,
copies of which are attached hereto as Exhibit J-2.
"Subordinated Intercompany Real Estate Note" shall mean a Subordinated
Intercompany Real Estate Note, a copy of which is attached hereto as Exhibit
J-1.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such Person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of PXI.
"Subsidiary Guarantor" shall mean any Subsidiary party to the
Subsidiary Guaranty on the Restatement Effective Date or any Subsidiary that,
after the Restatement Effective Date, executes a counterpart of the Subsidiary
Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in Section
5.01(g).
"Subsidiary Security Agreement" shall meaning provided in Section
5.01(h).
"Swingline Loan" shall have the meaning provided in Section 1.01(B).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Swingline Termination Date" shall mean the date which is three
Business Days prior to the Maturity Date.
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"Syndication Agent" shall mean NationsBank.
"Tape Expenditures" shall mean all cash payments in respect of the
acquisition by Blockbuster PR or Blockbuster VI of video tapes.
"Taxes" shall have the meaning provided in Section 4.04.
"Test Period" shall mean, with respect to any Test Period ending (x)
on or prior to January 31, 1998, a period (taken as one accounting period)
commencing on January 26, 1997 and ending on (i) May 17, 1997, (ii) August 9,
1997 and (iii) November 1, 1997, respectively, and (y) thereafter, the four
consecutive fiscal quarters of PXI (taken as one accounting period) then last
ended.
"Third Party Debt Repayments" shall mean any repayment by the
Borrower, Xtra or any of their Subsidiaries of principal on Indebtedness of the
Borrower, Xtra or any such Subsidiary provided that Third Party Debt Repayments
shall not include (i) any repayment on the Revolving Loans except to the extent
the Total Revolving Commitment has been permanently reduced in connection with
such repayment, (ii) any repayment on any other revolving loans of the Borrower,
Xtra or any Subsidiary other than any such repayment at the final maturity
thereof but then only to the extent such revolving loans have not been replaced
or refinanced through a new loan or credit facility, (iii) any repayment
financed through the incurrence of new Indebtedness (excluding any repayment
financed through the incurrence of Revolving Loans), (iv) any repayment of
Indebtedness with proceeds of the sale of assets or issuance of equity and (v)
any repayments of Capital Lease Obligations and/or other indebtedness, to the
extent in each case described in this clause (v) deducted in computing Adjusted
Cash Flow for the applicable period.
"Total Cash Interest Expense" shall mean for any period total interest
expense (net of interest income) of PXI and its Subsidiaries on a consolidated
basis (including, without limitation, the interest expense associated with
Capitalized Lease Obligations but excluding expense for interest not payable in
cash).
"Total Revolving Commitment" shall mean the sum of the Revolving
Commitments of each of the Banks.
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"Total Unutilized Revolving Commitment" shall mean, at any time, the
excess, if any, of (i) the Total Revolving Commitment over (ii) the sum of (x)
the outstanding principal amount of all Revolving Loans and Swingline Loans plus
(y) the L/C Outstandings, in each case at such time.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year, determined in accordance
with Statement of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most recent annual
valuation of the Plan, exceeds the fair market value of the assets allocable
thereto, determined in accordance with Section 412 of the Code.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
"Unutilized Revolving Commitment" for any Bank at any time shall
mean an amount (not less than zero) equal to the excess of (x) the Revolving
Commitment of such Bank over (y) the sum of (i) the aggregate outstanding
Revolving Loans of such Bank plus (ii) such Bank's Adjusted Percentage of the
L/C Outstandings plus (iii) in the case of Scotiabank, the aggregate outstanding
principal amount of Swingline Loans.
"Voting Stock" shall mean the shares of capital stock and any other
securities of any Person entitled to vote generally for the election of
directors of such Person or any other securities (including, without limitation,
rights and options), convertible into, exchangeable into or exercisable for, any
of the foregoing (whether or not presently exercisable, convertible or
exchangeable).
"Wholly-Owned Subsidiary" of any Person shall mean any Subsidiary of
such Person to the extent all of the capital stock or other ownership interests
in such Subsidiary, other than directors' qualifying shares, is owned directly
or indirectly by such Person.
"Written" or "in writing" shall mean any form of written communication
or a communication by means of telex, telecopier device, telegraph or cable.
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"XM Pledge Agreement" shall have provided in Section 5.01(f)(iv).
"Xtra" shall have the meaning provided in the first paragraph of this
Agreement.
"Xtra Pledge Agreement" shall have the meaning provided in Section
5.01(f)(iii).
SECTION 11. The Administrative Agent, etc.
11.01 Appointment. Each Bank hereby irrevocably designates and
appoints Scotiabank as Administrative Agent (such term as used in this Section
11 to include Scotiabank in its capacity as Collateral Agent), and NationsBank
as Syndication Agent, for such Bank to act as specified herein and in the other
Credit Documents, and each such Bank hereby irrevocably authorizes Scotiabank as
the Administrative Agent, and NationsBank as Syndication Agent, for such Bank,
to take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent or Syndication Agent or the
Agents, as the case may be, by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
The Administrative Agent and Syndication Agent each agrees to act as such upon
the express conditions contained in this Section 11. Notwithstanding any
provision to the contrary elsewhere in this Agreement, neither the
Administrative Agent nor the Syndication Agent shall have any duties or
responsibilities, except those expressly set forth herein or in the other Credit
Documents, or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Administrative Agent
or Syndication Agent. Provisions of this Section 11 are solely for the benefit
of the Administrative Agent, the Syndication Agent and the Banks, and no Credit
Party shall have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement,
the Administrative Agent and Syndication Agent each shall act solely as agent of
the Banks and the Administrative Agent and Syndication Agent each does not
assume and shall not be deemed to have assumed any obligation or relationship of
agency or trust with or for any Credit Party.
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11.02 Delegation of Duties. The Administrative Agent and Syndication
Agent each may execute any of its duties under this Agreement or any other
Credit Document by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent and Syndication Agent each shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care except to the extent otherwise required by Section 11.03.
11.03 Exculpatory Provisions. Neither Agent, nor any of its respective
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct) or (ii) responsible in any
manner to any of the Banks for any recitals, statements, representations or
warranties made by any Credit Party or any of their respective officers
contained in this Agreement, any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by either Agent under or in connection with, this Agreement or any other Credit
Document or for any failure of any Credit Party or any of their respective
officers to perform its obligations hereunder or thereunder. Neither Agent shall
be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of any Credit
Party. Neither Agent shall be responsible to any Bank for the effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this
Agreement or any Credit Document or for any representations, warranties,
recitals or statements made herein or therein or made in any written or oral
statement or in any financial or other statements, instruments, reports,
certificates or any other documents in connection herewith or therewith
furnished or made by either Agent to the Banks or by or on behalf of any Credit
Party to either Agent or any Bank or be required to ascertain or inquire as to
the performance or observance of any of the terms, conditions, provisions,
covenants or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence of any Default
or Event of Default.
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11.04 Reliance by Administrative Agent etc. Each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Credit Parties), independent accountants and other experts selected by either
Agent. Each Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Banks as it deems appropriate
or it shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Credit Documents in accordance with a request of the Required Banks, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks.
11.05 Notice of Default. Neither Agent shall be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Bank or the Borrower or any other
Credit Party referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Agent receives such a notice, it shall give prompt notice thereof to
the Banks. Each Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Banks, provided
that, unless and until an Agent shall have received such directions, such Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
11.06 Non-Reliance on Administrative Agent and Other Banks. Each Bank
expressly acknowledges that neither Agent nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by either Agent hereinafter
taken, including any review of the affairs of any Credit Party, shall be deemed
to constitute any representation or warranty by an Agent to any Bank. Each Bank
represents to the Agents that it has, independently and
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without reliance upon either Agent or any other Bank, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, assets, operations, property, financial
and other conditions, prospects and creditworthiness of the Credit Parties and
made its own decision to make its Loans hereunder and enter into this Agreement.
Each Bank also represents that it will, independently and without reliance upon
either Agent or any other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Credit Parties. Neither Agent shall have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, assets, property, financial and
other conditions, prospects or creditworthiness of any Credit Party which may
come into the possession of such Agent or any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates.
11.07 Indemnification. The Banks agree to indemnify each Agent and
Syndication Agent in its capacity as such ratably according to the Banks'
aggregate Loans and Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
reasonable expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Obligations) be imposed on, incurred by or asserted against such Agent in its
capacity as such in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted to be taken
by such Agent under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by the Borrower, provided that no
Bank shall be liable to either Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of such Agent. If any indemnity furnished to either Agent for
any purpose shall, in the opinion of such Agent, be insufficient or become
impaired, the Agents may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished. The
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agreements in this Section 11.07 shall survive the payment of all Obligations.
11.08 Individual Capacity. The Administrative Agent and the
Syndication Agent and their respective affiliates may make loans to, accept
deposits from and generally engage in any kind of business with any Credit Party
as though such Agent were not an Agent hereunder. With respect to the Loans made
by it and all Obligations owing to it, each Agent shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not an Agent and the terms "Bank" and "Banks" shall include the each Agent
in its individual capacity.
11.09 Resignation; Removal; Successors. Either Agent may resign as
Agent upon 20 days' notice to the Banks, and either Agent may be removed at any
time with or without cause by the Required Banks. Upon the resignation or
removal of the Administrative Agent, the Required Banks shall appoint from among
the Banks a successor Administrative Agent for the Banks subject to prior
approval by the Borrower (such approval not to be unreasonably withheld),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Administrative Agent, and the term "Administrative Agent" shall include such
successor agent effective upon its appointment, and the resigning or removed
Administrative Agent's rights, powers and duties as the Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement. After
the retiring Administrative Agent's resignation or removal hereunder as the
Administrative Agent, the provisions of this Section 11 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether or
not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents in connection with the
negotiation, preparation, execution and delivery of the Credit Documents and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of White & Case and any local counsel) and of the Agents and each
of the Banks in connection with the enforcement of the Credit Documents and the
documents and instru-
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ments referred to therein (including, without limitation, the reasonable fees
and disbursements of counsel for the Agents and for each of the Banks); (ii) pay
and hold each of the Banks harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Banks harmless from and against any and all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Bank) to pay such taxes; and (iii) indemnify each Agent and
each Bank, their respective officers, directors, employees, representatives and
agents (each, an "indemnified person") from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred by
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
any Bank is a party thereto) related to the entering into and/or performance of
any Credit Document or the use of the proceeds of any Loans hereunder or the
consummation of any other transactions contemplated in any Credit Document, (b)
any settlement entered into in connection with the foregoing to the extent such
settlement has been consented to by the Borrower or PXI, which consent shall not
be unreasonably withheld or (c) the actual or alleged presence of Hazardous
Materials on, or Released from, any Real Property of any Credit Party or any
Environmental Claim with respect to any Credit Party, in each case including,
without limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation, Environmental Claim or any
of such Credit Party's acts, omissions, business, operations or Real Property,
or other proceeding (but excluding any such losses, liabilities, claims, damages
or expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified). To the extent that the undertaking
to indemnify and hold harmless set forth in this Section 12.01 may be
unenforceable because it is violative of any law or public policy as determined
by a final judgment of a court of competent jurisdiction, the Borrower shall
make the maximum contribution to the payment and satisfaction of each of the
liabilities giving rise to claims under the indemnification provisions of this
12.01 which is permissible under applicable law.
12.02 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Bank is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Bor-
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rower or to any other Person, any such notice being hereby expressly waived, to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of any Credit Party hereto against and on
account of the Obligations and liabilities of such Credit Party to such Bank
under this Agreement or under any of the other Credit Documents, including,
without limitation, all interests in Obligations of such Credit Party (but
excluding any amounts held by such Bank in a trustee capacity) purchased by such
Bank pursuant to Section 12.06(b), and all other claims of any nature or
description arising out of or connected with this Agreement or any other Credit
Document, irrespective of whether or not such Bank shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
12.03 Notices. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing and
mailed, telegraphed, telexed, telecopied, cabled or delivered, if to PXI, the
Borrower or Xtra, at the address specified opposite its signature below; if to
any Bank, at its address specified for such Bank on Schedule I hereto; or, at
such other address as shall be designated by any party in a written notice to
the other parties hereto. All such notices and communications shall be mailed,
telegraphed, telexed, telecopied, or cabled or sent by overnight courier, and
shall be effective when received.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided that no Credit Party may assign or
transfer any of its rights or obligations hereunder (except as expressly
provided herein) without the prior written consent of the Banks. Each Bank may
at any time grant participations in any of its rights hereunder or under any of
the Notes to a Person that is a commercial bank, other financial institution,
mutual fund or '"Accredited Investor" as such term is defined in Regulation D of
the Securities Act of 1933, as amended, provided that in the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Bank in
respect of such participation to be those set forth in the agreement executed by
such Bank in favor of the participant relating thereto) and all amounts payable
by any Borrower hereunder shall be
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determined as if such Bank had not sold such participation, except that the
participant shall be entitled to the benefits of Sections 1.10, 1.11, 2.04 and
4.04 of this Agreement to would be entitled to such benefits if the
participation had not been entered into or sold, and provided further, that no
Bank shall transfer, grant or assign any participation under which the
participant shall have rights to approve any amendment to or waiver of this
Agreement or any other Credit Document except to the extent such amendment or
waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating (it being understood that any waiver of
any prepayment of Loans shall not constitute an extension of the final maturity
date) or reduce the rate or extend the time of payment of interest or Fees
thereon (except in connection with a waiver of the applicability of any
post-default increase in interest rates), or reduce the principal amount
thereof, or increase such participant's participating interest in any Commitment
over the amount thereof then in effect (it being understood that a waiver of any
Default or Event of Default or of a mandatory reduction in the Total Commitment,
or a mandatory prepayment, shall not constitute a change in the terms of any
Commitment), (ii) release all or substantially all of the Collateral (except as
expressly provided herein) or (iii) consent to the assignment or transfer by any
Credit Party of any of its rights and obligations under this Agreement (except
as expressly provided herein or therein).
(b) Notwithstanding the foregoing, (x) any Bank may assign all or a
portion of its Revolving Commitment (and the outstanding Revolving Loans
thereunder) and its rights and obligations hereunder to its parent company
and/or any affiliate of such Bank which is at least 50% owned by such Bank or
its parent company or to one or more Banks and (y) any Bank may, after
consultation with, but with no obligation to obtain the consent of, PXI, assign
a portion, in an amount equal to at least the Minimum Assignment Amount (or the
remaining balance thereof if less) of its Revolving Commitment and its rights
and obligations hereunder to a Person that is a commercial bank, other financial
institution, mutual fund or "Accredited Investors" as such term is defined in
Regulation D of the Securities Act of 1933, as amended (each an "Eligible
Assignee"), each of which Eligible Assignees to become a party to this Agreement
as a Bank prior to or after the Restatement Effective Date by executing an
assignment agreement in the form of Exhibit K hereto, appropriately completed
(an "Assignment Agreement") with the assigning Bank, provided that, in each
case, (i) at such time Schedule I shall be deemed to have been modified to
reflect the Loans
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and/or Commitments of such new Bank and of the existing Banks, (ii) if requested
by such new Bank or the assigning Bank, the Borrower shall issue new Notes to
such new Bank and to the assigning Bank in conformity with the requirements of
Section 1.05, and (iii) the Administrative Agent shall have received at the time
of each such assignment from either the assigning or assignee Bank the payment
of a nonrefundable assignment fee of $5,000. To the extent of any assignment
pursuant to this Section 12.04(b), the assigning Bank shall be relieved of its
obligations hereunder with respect to its assigned Loans and/or Commitment. No
Bank may assign all or a portion of its Revolving Commitment to an Eligible
Assignee not already a Bank hereunder unless the Letter of Credit Issuer shall
have consented in writing to such assignment.
(c) Notwithstanding any other provisions of this Section 12.04, no
transfer or assignment of the interests or obligations of any Bank hereunder or
any grant of participations therein shall be permitted if such transfer,
assignment or grant would require any Borrower to file a registration statement
or qualify an indenture with the SEC or to qualify the Loans under the "Blue
Sky" laws of any State.
(d) Each Bank initially party to this Agreement hereby represents, and
each Person that becomes a Bank pursuant to an assignment permitted by this
Section 12.04 will, upon its becoming party to this Agreement, represent that it
is a commercial lender, other financial institution or other "Accredited
Investor" which makes and/or invests in loans in the ordinary course of its
business and that it will make or acquire Loans or participations for its own
account in the ordinary course of such business, provided that, subject to the
preceding clauses (a) and (b), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Bank shall at all times
be within its exclusive control.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part
of the Administrative Agent or any Bank in exercising any right, power or
privilege hereunder or under any other Credit Document and no course of dealing
between any Credit Party and either Agent or any Bank shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or under any other Credit Document preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which each Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party
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in any case shall entitle any Credit Party to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Agents or the Banks to any other or further action in any circumstances
without notice or demand.
12.06 Payments Pro Rata. (a) The Administrative Agent agrees that
promptly after its receipt of each payment from or on behalf of any Borrower in
respect of any Obligations, it shall, except as otherwise provided in this
Agreement, distribute such payment to the Banks (other than any Bank that has
consented in writing to waive its pro rata share of such payment) pro rata based
upon their respective shares, if any, of the Obligations with respect to which
such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligations then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
in such amount as shall result in a proportional participation by all of the
Banks in such amount, provided that if all or any portion of such excess amount
is thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
12.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved (except as set
forth in the notes thereto or as otherwise disclosed in writing by any Borrower
to the Banks), provided that, except as otherwise specifically provided herein,
all computations determining compliance with Section 8, including definitions
used therein, shall utilize accounting principles and policies in effect at the
time of the preparation of, and in conformity with those used to prepare, the
historical financial statements delivered to the Banks pursuant to Section
6.10(b) provided that FAS 109 shall be utilized in making all
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such determinations. At any time the computations determining compliance with
Section 8 utilize accounting principles or treatments different from those
utilized in the financial statements then being furnished to the Banks pursuant
to Section 7.01, such financial statements shall be accompanied by
reconciliation work-sheets.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
12.08 Governing Law; Submission to Jurisdiction; Venue. (a) This
Agreement and the other Credit Documents and the rights and obligations of the
parties hereunder and thereunder shall, except as otherwise provided in the
Mortgages or certain other Security Documents, be construed in accordance with
and be governed by the law of the State of New York. Any legal action or
proceeding with respect to this Agreement or any other Credit Document may be
brought in the courts of the State of New York or of the United States for the
Southern District of New York, and, by execution and delivery of this Agreement,
each Credit Party hereto hereby irrevocably accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each Credit Party hereto hereby irrevocably designates, appoints and
empowers CT Corporation System with offices on the date hereof at 0000 Xxxxxxxx,
Xxx Xxxx, XX 00000 as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of
any and all legal process, summons, notices and documents which may be served in
any such action or proceeding. The Administrative Agent agrees to use reasonable
good faith efforts to mail, by registered or certified mail, to the respective
Credit Party, at its address set forth opposite its signature below, copies of
any and all legal process, summons, notices and documents mailed or delivered to
CT Corporation System in connection with the immediately preceding sentence;
provided that the failure of any Credit Party to receive, for any reason, copies
of such correspondence shall not in any way affect the effectiveness of the
delivery of any legal process, summons, notice or documents delivered to CT
Corporation System. If for any reason such designee, appointee and agent shall
cease to be available to act as such, each Credit Party hereto agrees to
designate a new designee, appointee and agent in New York City on the terms and
for the purposes of this provision satisfactory to the Administrative Agent.
Each Credit Party hereto further irrevocably consents to the service of process
out of any of the aforementioned courts in any such action or proceeding by the
mailing of copies there-
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of by registered or certified mail, postage prepaid, to such Credit party, at
its address set forth opposite its signature below, such service to become
effective thirty days after such mailing. Nothing herein shall affect the right
of the Administrative Agent, any Bank or the holder of any Note to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Credit Party in any other jurisdiction.
(b) Each Credit Party hereto hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement or any other Credit Document brought in the courts referred to in
clause (a) above and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. Each Credit Party hereto
further waives any right it may have to trial by jury in any court or
jurisdiction, including without limitation those referred to in clause (a)
above, in respect of any matter arising out of or relating to this Agreement and
the other Credit Documents.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Credit Party and
the Administrative Agent.
12.10 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.11 Amendment or Waiver. Neither this Agreement nor any other Credit
Document nor any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination is in writing
signed by PXI and the Borrower and the Required Banks, provided that no such
change, waiver, discharge or termination shall, without the consent of each Bank
(other than a Defaulting Bank) affected thereby (or its Obligations being
directly affected in the case of the following clause (i)), (i) extend the final
scheduled maturity of any Unpaid Drawing, Loan or Note (it being understood that
any waiver of any prepayment of the Loans shall not constitute an extension of
the final maturity
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date), or reduce the rate or extend the time of payment of interest (other than
as a result of waiving the applicability of any post-default increase in
interest rates) thereon or Fees, or reduce the amount thereof, or increase the
Commitments of any Bank over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Total Commitment, or mandatory prepayment, shall not constitute
a change in the terms of any Commitment of any Bank), (ii) release all or
substantially all of the collateral (except as expressly provided in the Credit
Documents), (iii) amend, modify or waive any provision of this Section, or
Section 9.01, 11.07, 12.01, 12.02, 12.04, 12.06 or 12.07 (b), (iv) reduce
the percentage specified in the definition of Required Banks (it being
understood that, with the consent of the Required Banks, additional extensions
of credit pursuant to this Agreement may be included in the determination of the
Required Banks on substantially the same basis as the Revolving Commitments are
included on the Restatement Effective Date), (v) consent to the assignment or
transfer by any Credit Party of any of its rights and obligations under any
Credit Document (except as expressly provided herein or therein). No provision
of Section 2 or Section 11 may be amended without the consent of the affected
Letter of Credit Issuer or affected Agent, respectively. All modifications and
amendments to this Agreement and to Schedules I and II described in Section
12.04 may be effective as described therein.
12.12 Survival. All indemnities set forth herein including, without
limitation, in Section 1.10, 1.11, 2.05, 4.04, 11.07 or 12.01 shall survive the
execution and delivery of this Agreement and the making and repayment of the
Loans and the satisfaction of all other Obligations.
12.13 Domicile of Loans. Each Bank may transfer and carry its Loans or
participations at, to or for the account of any branch office, subsidiary or
affiliate of such Bank, provided that no Borrower shall be responsible for costs
arising under Section 1.10, 1.11, 2.05 or 4.04 resulting from any such transfer
to the extent not otherwise applicable to such Bank prior to such transfer.
12.14 Registry. The Borrower hereby designates the Administrative
Agent to serve as the Borrower's agent, solely for purposes of this Section
12.14, to maintain a register (the "Register") on which it will record the
Commitments from time to time of each of the Banks, the Revolving Loans made by
each of the Banks and each repayment in respect of the principal amount of the
Revolving Loans of
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each Bank. Failure to make any such recordation, or any error in such
recordation shall not affect the Borrower's obligations in respect of such
Revolving Loans. With respect to any Bank, the transfer of the Commitments of
such Bank and the rights to the principal of, and interest on, any Revolving
Loan made pursuant to such Commitments shall not be effective until such
transfer is recorded on the Register maintained by the Administrative Agent with
respect to ownership of such Revolving Commitments and Revolving Loans and prior
to such recordation all amounts owing to the transferor with respect to such
Revolving Commitments and Revolving Loans shall remain owing to the transferor.
The registration of assignment or transfer of all or part of any Revolving
Commitments and Revolving Loans shall be recorded by the Administrative Agent on
the Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment Agreement pursuant to Section 12.04(b).
Coincident with the delivery of such an Assignment Agreement to the
Administrative Agent for acceptance and registration of assignment or transfer
of all or part of a Revolving Loan, or as soon thereafter as practicable, the
assigning or transferor Bank shall surrender the Revolving Note evidencing such
Revolving Loan, and thereupon one or more new Revolving Notes in the same
aggregate principal amount shall be issued to the assigning or transferor Bank
and/or the new Bank. The Borrower agrees to indemnify the Administrative Agent
from and against any -and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 12.14.
SECTION 13. Guaranty.
13.01 The Guaranty. In order to induce the Banks to enter into this
Agreement and to extend credit hereunder and in recognition of the direct
benefits to be received by each Guarantor from the proceeds of the Loans and the
issuance of the Letters of Credit, each Guarantor hereby agrees with the Banks
as follows (for purposes of this Section 13, Guarantor shall mean PXI and Xtra):
each Guarantor hereby unconditionally and irrevocably, jointly and severally,
guarantees as primary obliger and not merely as surety the full and prompt
payment when due, whether upon maturity, by acceleration or otherwise, of any
and all indebtedness of the Borrower to the Banks. If any or all of the
indebtedness of the Borrower to the Banks becomes due and payable hereunder,
each Guarantor, jointly and severally, unconditionally promises to pay such
indebtedness to the Banks, or order, on
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demand, together with any and all reasonable expenses which may be incurred by
any Agent or the Banks in collecting any of the indebtedness. The word
"indebtedness" is used in this Section 13 in its most comprehensive sense and
means any and all advances, debts, obligations and liabilities of the Borrower
arising in connection with this Agreement, heretofore, now, or hereafter made,
incurred or created, whether voluntarily or involuntarily, absolute or
contingent, liquidated or unliquidated, determined or undetermined, whether or
not such indebtedness is from time to time reduced, or extinguished and
thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such
indebtedness may be or hereafter become barred by any statute of limitations,
and whether or not such indebtedness may be or hereafter become otherwise
unenforceable.
13.02 Bankruptcy. Additionally, each Guarantor unconditionally and
irrevocably, jointly and severally, guarantees the payment of any and all
indebtedness of the Borrower to the Banks whether or not due or payable by such
Borrower upon the occurrence in respect of the Borrower of any of the events
specified in Section 9.05, and unconditionally and irrevocably, jointly and
severally promises to pay such indebtedness to the Banks, or order, on demand,
in lawful money of the United States.
13.03 Nature of Liability. The liability of each Guarantor hereunder
is exclusive and independent of any security for or other guaranty of the
indebtedness of the Borrowers whether executed by such Guarantor, any other
Guarantor, any other guarantor or by any other party, and the liability of each
Guarantor hereunder shall not be affected or impaired by (a) any direction as to
application of payment by the Borrower or by any other party, or (b) any other
continuing or other guaranty, undertaking or maximum liability of a guarantor or
of any other party as to the indebtedness of the Borrower, or (c) any payment on
or in reduction of any such other guaranty or undertaking, or (d) any
dissolution, termination or increase, decrease or change in personnel by the
Borrower, or (e) any payment made to the Agents or the Banks on the indebtedness
which the Agents or such Banks repay to the Borrower pursuant to court order in
any bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding.
13.04 Independent Obligation. The obligations of each Guarantor
hereunder are independent of the obligations
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of any other Guarantor, any other guarantor of the Borrower, and a separate
action or actions may be brought and prosecuted against each Guarantor whether
or not action is brought against any other Guarantor, any other guarantor of the
Borrower and whether or not any other Guarantor, any other guarantor or the
Borrower be joined in any such action or actions. Each Guarantor waives, to the
fullest extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by the
Borrower or other circumstance which operates to toll any statute of limitations
as to the Borrower shall operate to toll the statute of limitations as to each
Guarantor.
13.05 Authorization. Each Guarantor authorizes the Agents and the
Banks without notice or demand (except as shall be required by applicable
statute and cannot be waived), and without affecting or impairing its liability
hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the indebtedness (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made
shall apply to the indebtedness as so changed, extended, renewed or
altered;
(b) take and hold security for the payment of the indebtedness and
sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in any order any property by whomsoever at any time pledged
or mortgaged to secure, or howsoever securing, the indebtedness or any
liabilities (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower or others or otherwise act or refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligers;
(e) settle or compromise any of the indebtedness, any security
therefor or any liability (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and may subordinate
the payment
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of all or any part thereof to the payment of any liability (whether due or
not) of the Borrower to its creditors other than the Banks;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Borrower to the Banks regardless of what
liability or liabilities of the Guarantors or the Borrower remain unpaid;
and/or
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements.
13.06 Reliance. It is not necessary for any Agent or the Banks to
inquire into the capacity or powers of the Borrower or the officers, directors,
partners or agents acting or purporting to act on behalf of any of them, and any
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
13.07 Subordination. Any indebtedness of the Borrower now or hereafter
owing to a Guarantor, is hereby subordinated to the indebtedness of the Borrower
owing to the Agents and the Banks, provided that payment may be made by the
Borrower on any such indebtedness owing to a Guarantor so long as the same is
not prohibited by this Agreement, and provided further, that if the
Administrative Agent so requests at a time when an Event of Default exists, all
such indebtedness of the Borrower to such Guarantor shall be collected, enforced
and received by such Guarantor as trustee for the Banks and be paid over to the
Banks on account of the indebtedness of the Borrower to the Banks, but without
affecting or impairing in any manner the liability of such Guarantor under the
other provisions of this Guaranty, and provided further that this Section 13.07
shall not apply to the Subordinated Intercompany Real Estate Note or other
Subordinated Intercompany Notes. Prior to the transfer by any Guarantor of any
note or negotiable instrument evidencing any indebtedness of the Borrower to
such Guarantor, such Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination.
13.08 Waiver. (a) Each Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require the
Administrative Agent or the Banks to (i) proceed against the Borrower, any other
Guarantor, any other guarantor or any other party, (ii) proceed against or
exhaust any security held from the Borrower, any
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other Guarantor, any other guarantor or any other party or (iii) pursue any
other remedy in the Administrative Agent's or the Banks' power whatsoever. Each
Guarantor waives any defense based on or arising out of any defense of the
Borrower, any other Guarantor, any other guarantor or any other party other than
payment in full of the indebtedness, including, without limitation, any defense
based on or arising out of the disability of the Borrower, any other Guarantor,
any other guarantor or any other party, or the unenforceability of the
indebtedness or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower other than payment in full of the indebtedness.
The Administrative Agent and the Banks may, at their election, foreclose on any
security held by the Administrative Agent, the Collateral Agent or the Banks by
one or more judicial or nonjudicial sales, whether or not every aspect of any
such sale is commercially reasonable (to the extent such sale is permitted by
applicable law), or exercise any other right or remedy the Administrative Agent
and the Banks may have against the Borrower or any other party, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the indebtedness has been paid. Each Guarantor
waives any defense arising out of any such election by the Administrative Agent
and the Banks, even though such election operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other party or any security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including without limitation notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
indebtedness. Each Guarantor assumes all responsibility for being and keeping
itself informed of the Borrower's financial condition and assets, and of all
other circumstances bearing upon the risk of nonpayment of the indebtedness and
the nature, scope and extent of the risks which such Guarantor assumes and
incurs hereunder, and agrees that the Administrative Agent and the Banks shall
have no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
(c) Until such time as all the Obligations have been paid in full in
cash or Cash Equivalents, each Guarantor hereby waives all rights of subrogation
which it may at any time otherwise have as a result of this Guaranty (whether
contractual, under Section 509 of the Bankruptcy Code, or otherwise) to the
claims of the Banks against the Borrower or
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any other guarantor of the Obligations and all contractual, statutory or common
law rights of reimbursement, contribution or indemnity from the Borrower or any
other guarantor which it may at any time otherwise have as a result of this
Guaranty.
13.09 Limitation on Enforcement. The Banks agree that this Guaranty
may be enforced only by the action of the Administrative Agent, in each case
acting upon the instructions of the Required Banks and that no Bank shall have
any right individually to seek to enforce or to enforce this Guaranty it being
understood and agreed that such rights and remedies may be exercised by the
Administrative Agent for the benefit of the Banks upon the terms of this
Agreement. The Banks further agree that this Guaranty may not be enforced
against any director, officer, employee or stockholder of any Guarantor.
13.10 Rights of Contribution. Without in any manner modifying its
obligations to the Banks under this Guaranty, to the extent that any Guarantor
makes any payment under this Guaranty in respect of any indebtedness (other than
indebtedness of any Subsidiary of such Guarantor) that is in excess of its
Percentage of the aggregate payments made by all Guarantors under this Guaranty
in respect of such indebtedness, then such Guarantor shall have a right of
contribution from each other Guarantor whose payments, if any, in respect of
such indebtedness are less than its percentage of the aggregate payments made by
all Guarantors under this Guaranty in respect of such indebtedness in an amount,
and with the effect, that after giving effect to any such contribution right,
such Guarantor shall be responsible only for its Percentage of all payments made
hereunder by all Guarantors in respect of such indebtedness. As used in this
Section 13.10, a Guarantor's Percentage shall mean the percentage obtained by
dividing (i) the amount by which the present fair saleable value of its assets
on the date of this Guaranty exceeds its liabilities on such date (without
giving effect to this Guaranty) (such excess for such Guarantor, its "Net
Worth") by (ii) the aggregate Net Worth of all Guarantors at such time.
13.11 Post Closing Actions. Notwithstanding anything to the contrary
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) Depository Account Agreement. The Borrower shall not be required
to have authorized, executed and delivered the depository account agreement
on the
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Restatement Effective Date, but instead if the effective date of the Puerto
Rico Commercial Transactions Act (Act No. 241 enacted on September 19,
1996) does not occur on or prior to July 2, 1997, then the Borrower shall
authorize, execute and deliver a depositary account agreement satisfactory
in form and substance to the Administrative Agent and the Borrower, among
the Borrower, the Collateral Agent and a depository bank organized under
the laws of the Commonwealth of Puerto Rico and having an office in Puerto
Rico, within 60 days of receipt of a written request from the
Administrative Agent that the Borrower do so, provided that no such request
may be made by the Administrative Agent prior to July 2, 1997.
(b) Mortgage Amendments. The amendments to the Mortgages with respect
to Mortgaged Properties located in the U.S. Virgin Islands shall not be
required to be delivered by the Borrower on the Restatement Effective Date
but shall instead be required to be delivered by the Borrower within 60
days following the Restatement Effective Date.
(c) Intellectual Property. The Borrower shall not be required to
deliver any additional assignments of security interests relating to
intellectual property on the Restatement Effective Date provided that the
Borrower shall deliver such additional assignments of security interests
relating to intellectual property as the Administrative Agent may request
in form and substance satisfactory to the Administrative Agent within 30
days of receipt of a written request from the Administrative Agent to do
so.
(d) Insurance Certificates. The Borrower shall not be required to
deliver all of the evidence of insurance complying with the requirements of
Section 7.09, instead the Borrower will deliver, within 30 days following
the Restatement Effective Date to the Agents, evidence of insurance in form
and substance satisfactory to the Agents, which evidence of insurance shall
comply with the requirements of Section 5.01(k).
All conditions precedent and representations contained in this
Agreement and the other Credit Documents shall be deemed modified to the extent
necessary to effect the foregoing (and to permit the taking of the actions
described above within the time periods required above, rather than as elsewhere
provided in the Credit Documents); provided, that (x) to the extent any
representation and warranty would not
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be true because the foregoing actions were not taken on the Restatement
Effective Date, the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken (or was required to be taken) in accordance with the foregoing
provisions of Section 13.11 and (y) all representations and warranties relating
to the Security Documents shall be required to be true immediately after the
actions required to be taken by Section 13.11 have been taken (or were required
to be taken). The acceptance of the benefits of each Credit Event shall
constitute a representation, warranty and covenant by the Borrower to each of
the Banks that the actions required pursuant to this Section 13.11 will be taken
within the relevant time periods referred to in this Section 13.11 and that, at
such time, all representations and warranties contained in this Agreement and
the other Credit Documents shall then be true and correct without any
modification pursuant to this Section 13.11. Any failure to comply with the
requirements of this Section 13.11 shall constitute a breach of covenant by the
Borrower (including, without limitation, for purposes of Section 9.03 of this
Agreement).
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the date
first above written.
Address for Notices: PUEBLO XTRA INTERNATIONAL,
0000 X.X. 00xx Xxxxxx INC.
Xxxxxxx Xxxxx, XX 00000
Tel: (000) 000-0000 By /s/ Xxxxxxx X. Xxxx III
Fax: (000) 000-0000 -------------------------------------
Attn: Chief Financial Officer Name: Xxxxxxx X. Xxxx III
Title: President
Address for Notices: PUEBLO INTERNATIONAL, INC.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 By /s/ Xxxxxxx X. Xxxx III
Tel: (000) 000-0000 -----------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxx III
Attn: Chief Financial Officer Title: President
Address for Notices: XTRA SUPER FOOD CENTERS, INC.
0000 X.X. 00xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 By /s/ Xxxxxxx X. Xxxx III
Tel: (000) 000-0000 -------------------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxx III
Attn: Chief Financial Officer Title: President
THE BANK OF NOVA SCOTIA, as
Administrative Agent and a Bank
By /s/ F.C.H. Xxxxx
------------------------------------
Name: F.C.H. Xxxxx
Title: Senior Manager Loan Operatons
NATIONSBANK, N.A. (SOUTH), as
Syndication Agent and a Bank
By /s/
------------------------------------
Name:
Title: Senior Vice President
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